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2016 DIGILAW 3 (MAD)

S. Perumal v. V. Banupriya

2016-01-04

R.MALA

body2016
ORDER R. Mala, J. 1. Heard the learned counsel appearing for the revision petitioners and the learned counsel appearing for the respondent. 2. The present Civil Revision Petition has been filed challenging the impugned order dated 13.01.2015 made in I.A. No.146 of 2014 in O.S. No.122 of 2010, wherein the application filed under Section 152 CPC to correct the judgment and decree came to be allowed. 3. The learned counsel appearing for the revision petitioner would submit that the respondent herein as plaintiff has filed the suit for partition and separate possession of 1/6th share in the schedule A to D mentioned properties. The petitioners herein as defendants filed the written statement. After contest, the suit was decreed. In paragraph 10 of the judgment, it has been specifically stated that the plaintiff is entitled to 1/6th share in the 'A' scheduled property and also entitled to income from 'B' to 'D' scheduled properties by filing separate application. Since there is no specific mentioning about item 'B' to 'D' scheduled properties, the respondent/plaintiff filed an application under Section 152 CPC stating that it is an accidental slip and hence, the Trial Court after hearing both sides and considering several judgments has allowed the application, against which the present Civil Revision Petition has been preferred. 4. Challenging the same, the learned counsel for the petitioner would submit that the decree holder ought to have filed an appeal or a review application as the correction now sought to be made is not a accidental slip or omission. Only a clerical or arithmetical error can be rectified by way of amendment under Section 152 CPC. However, the Trial Court without considering the said factum has allowed the application and hence, the learned counsel for the revision petitioner prayed for setting aside the impugned order. To substantiate the said contention, the learned counsel for the revision petitioners relied upon the following decisions: 1. (1999) 3 Supreme Court Cases 500, Dwaraka Das v. State of M.P and Another. 2. (2004) 1 Supreme Court Cases 328, State of Punjab v. Darshan Singh and prayed for setting aside the impugned order. 5. To substantiate the said contention, the learned counsel for the revision petitioners relied upon the following decisions: 1. (1999) 3 Supreme Court Cases 500, Dwaraka Das v. State of M.P and Another. 2. (2004) 1 Supreme Court Cases 328, State of Punjab v. Darshan Singh and prayed for setting aside the impugned order. 5. Resisting the same, the learned counsel appearing for the respondent would submit that a bare reading of the judgment would show that instead of 'A', it has to be 'A' to 'D' scheduled properties, as in the second limb it has been specifically stated that the plaintiff has to file separate application for mesne profits from 'B' to 'D' scheduled properties. So, it is only an accidental slip and omission that can be rectified under Section 152 CPC. To substantiate her contention, the learned counsel for the respondent relied upon the following decisions: 1. AIR 2003 Supreme Court 351, Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan and others. 2. AIR 2001 SC 1084 , Jayalakshmi Coelho v. Oswald Joseph Coelho. 3. (1994) 4 Supreme Court Cases 368, B.Shivananda v. Andhra Bank Ltd., and another. 4. 1967 AIR 1440, Samarendra Nath Sinha and other v. Krishna Kumar Nag. and prayed for dismissal of the Civil Revision Petition. 6. Considered the rival submissions made by both sides and perused the typed set of papers. 7. The respondent herein as plaintiff has filed for the suit for partition and separate possession of 1/6th share in the 'A' to 'D' scheduled properties stating that the 'A' scheduled property is a ancestral property and hence, she is entitled to 1/6th share in it. Further, the properties mentioned in the schedule 'B' to 'D' were purchased jointly by the father and the mother of the plaintiff and so, she is also entitled to 1/6th share in the 'B' to 'D' scheduled properties. Even though the father of the plaintiff had died, the mother of the plaintiff was alive and she has raised so many defence. However, the suit was decreed. At this juncture, it would be appropriate to incorporate Section 152 CPC. "152. Amendment of judgments, decrees or orders- Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties." 8. "152. Amendment of judgments, decrees or orders- Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties." 8. Now, it would be appropriate to consider the decisions relied on by the learned counsel appearing for the revision petitioners. 8.1. The learned counsel for the petitioners relied upon the decision reported in (1999) 3 Supreme Court Cases 500, Dwaraka Das v. State of M.P and Another, wherein at paragraph 6, it has been held as follows: "6. Section 152 C.P.C. provides for correction of clerical arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistakes by the Court of its ministerial actions and does not contemplate of passing effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, court or the tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. The correction contemplated are of correcting only accidental omission or mistakes and not all omissions and mistakes which might have been committed by the Court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 for which the proper remedy for the aggrieved party is to file appeal or review application. It implies that the Section cannot be pressed into service to correct an omission which is intentional, how erroneous that may be. It has been noticed that the courts below have been liberally construing and applying the province of Sections 151 and 152 of the CPC even after passing of effective order in the lis pending before them. No Court can under the cover of the aforesaid sections modify, alter or add to the terms of its original judgment, decree or order. It has been noticed that the courts below have been liberally construing and applying the province of Sections 151 and 152 of the CPC even after passing of effective order in the lis pending before them. No Court can under the cover of the aforesaid sections modify, alter or add to the terms of its original judgment, decree or order. In the instant case, the trial court had specifically held the respondents-State liable to pay future interest only despite the prayer of the appellant for grant of interest with effect from the date of alleged breach which impliedly meant that the court had rejected the claim of the appellant in so far as pendente lite interest was concerned. The omission in not granting the pendente lite interest could not be held to be accidental omission or mistake as was wrongly done by the trial court vide order dated 30th November, 1973. The High Court was, therefore, justified in setting aside the aforesaid order by accepting the revision petition filed by the State. (Emphasis Supplied) 8.2. The next decision relied on by the learned counsel for the revision petitioners is reported in (2004) 1 Supreme Court Cases 328, State of Punjab v. Darshan Singh, wherein the decision made in (1999) 3 Supreme Court Cases 500, Dwaraka Das v. State of M.P and Another has been followed. It would be appropriate to incorporate paragraph 12 of the said decision: "12. Section 152 provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistakes by the Court of its ministerial actions and does not contemplate passing of effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, the same becomes final subject to any further avenues of remedies provided in respect of the same and the very Court or the tribunal cannot, on mere change of view, is not entitled to vary the terms of the judgments, decrees and orders earlier passed except by means of review, if statutorily provided specifically therefor and subject to the conditions or limitations provided therein. The powers under Section 152 of the Code are neither to be equated with the power of review nor can be said to be akin to review or even said to clothe the Court concerned under the guise of invoking after the result of the judgment earlier rendered, in its entirety or any portion or part of it. The corrections contemplated are of correcting only accidental omissions or mistakes and not all omissions and mistakes which might have been committed by the Court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 as if it is looking into it for the first time, for which the proper remedy for the aggrieved party if at all is to file appeal or revision before the higher forum or review application before the very forum, subject to the limitations in respect of such review. It implies that the Section cannot be pressed into service to correct an omission which is intentional, however erroneous that may be. It has been noticed that the courts below have been liberally construing and applying the provisions of Sections 151 and 152 of Code even after passing of effective orders in the lis pending before them. No Court can, under the cover of the aforesaid sections, modify, alter or add to the terms of its original judgment, decree or order. Similar view was expressed by this Court in Dwaraka Das v. State of Madhya Pradesh and Anr. and Jayalakshmi Coelho v. Oswald Joseph Coelho. (Emphasis Supplied) There is no quarrel over the proposition laid down in the above decisions. 9. At this juncture, it would be appropriate to consider the decisions relied on by the learned counsel for the respondent. 9.1. The decision reported in AIR 2001 SC 1084 , Jayalakshmi Coelho v. Oswald Joseph Coelho deals with the petition for dissolution of marriage by mutual consent. In the said decision, after pressing the petition by invoking Section 152 CPC, the appellant therein sought for modification of decree for grant of mandatory injunction and also to incorporate the terms and conditions of agreement in decree. Hence, the said order was set aside by the Hon'ble Apex Court. So, the above decision will not be applicable to the facts of the present case. 9.2. Hence, the said order was set aside by the Hon'ble Apex Court. So, the above decision will not be applicable to the facts of the present case. 9.2. Similarly the other decisions relied on by the learned counsel for the respondent reported in AIR 2003 Supreme Court 351, Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan and others; (1994) 4 Supreme Court Cases 368, B.Shivananda v. Andhra Bank Ltd., and another; 1967 AIR 1440, Samarendra Nath Sinha and other v. Krishna Kumar Nag are not applicable to the facts of the present case. 10. Now the point to be decided by this Court is whether the amendment sought to be made in the instant case relates to the correction of clerical or arithmetical mistakes in judgments and decrees arising therein from any accidental slip or omission? At this juncture, it would be appropriate to incorporate the relevant portion of the judgment made in O.S. No.122 of 2010. (Editor: The text of the vernacular matter has not been reproduced.) A bare perusal of the judgment passed by the Trial Court would show that it is only an accidental slip. 11. Thus, considering the facts of the present case in the light of the decisions reported in (1999) 3 Supreme Court Cases 500, Dwaraka Das v. State of M.P and Another and (2004) 1 Supreme Court Cases 328, State of Punjab v. Darshan Singh, I am of the considered view that the Trial Court has considered all the aspects in proper perspective and there is no infirmity or illegality in the order passed by the Trial Court. 12. In fine, the Civil Revision Petition stands dismissed as devoid of merits. Consequently, connected miscellaneous petition is closed. No costs.