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2021 DIGILAW 1712 (MAD)

Rani v. V. Sivaraj

2021-06-10

ABDUL QUDDHOSE

body2021
ORDER : (Heard through video conference) This Civil Revision Petition has been filed by the petitioners, who are the defendants in the suit, aggrieved by the order dated 18.09.2019 in I.A. No.1 of 2019 in O.S. No.75 of 2007 passed by the Trial Court under Section 152 of the Code of Civil Procedure (for brevity “CPC”), whereby, the Trial Court has amended the decree. 2. The respondent, who is the plaintiff in the suit in O.S. No.75 of 2007, has sought for a specific performance of an agreement of sale, dated 20.11.2006 against the petitioners/defendants. He had sought for the following reliefs in the suit O.S. No.75 of 2007: (a) to grant a decree in favour of the Plaintiff for Specific Performance of Executed Sale Deed dated 20.11.2006 by directing the defendants to register the executed sale deed in favour of the plaintiff and on their failure, the Hon'ble Court may be pleased to register the Deed in favour of the Plaintiff and deliver the possession of the suit properties. (b) award the cost of the suit. (c) pass such further or other relief as this Hon'ble Court deem fit and proper in the circumstances of the case. 3. The Trial Court has passed an ex parte decree in favour of the respondent/plaintiff on 21.01.2008. The operative portion of the judgment, dated 21.01.2008 reads as follows : "Other Language" 4. Thereafter, the respondent/plaintiff noticed the following omission in the decree : “In case of failure of the petitioners/defendants to execute and register the sale deed, the Court will have to execute the same in favour of the respondent/plaintiff”. Hence, the respondent/plaintiff filed an application under Section 152 CPC on the ground that the decree has omitted by accidental slip to include the following sentence “on their failure, the Court shall execute and register the sale deed in favour of the respondent / plaintiff”. 5. The Trial Court, by its order dated 18.09.2019, which is under challenge in this revision in I.A. No.1 of 2019, has allowed the application filed by the respondent/plaintiff under Section 152 CPC. 6. 5. The Trial Court, by its order dated 18.09.2019, which is under challenge in this revision in I.A. No.1 of 2019, has allowed the application filed by the respondent/plaintiff under Section 152 CPC. 6. The petitioners/defendants have raised the following grounds in this revision for challenging the impugned order dated 18.09.2019 passed in I.A.No.1 of 2019 in O.S. No.75 of 2007 : (a) The application under Section 152 CPC has been filed by the respondent/plaintiff after a lapse of 11 years from the date of the judgment dated 21.01.2008; (b) Section 152 CPC will come into play only when there are clerical or arithmetical mistakes in the judgment; (c) The impugned order dated 18.09.2019 passed by the Trial Court will amount to altering the earlier judgment dated 21.01.2008; and (d) The impugned order dated 18.09.2019 passed by the Trial Court will amount to reviewing the earlier judgment dated 21.01.2008 and is not permissible under law. 7. Heard Mr. A.S. Sathiesh Kumar, learned counsel for the petitioners/defendants and perused the materials placed on record before this Court. Since no adverse orders are passed against the respondent/plaintiff, notice to the respondent/plaintiff is dispensed with. 8. This Court does not find any merit in the grounds raised by the petitioners/defendants in this revision for the following reasons : (i) The respondent/plaintiff had sought for the following reliefs in the plaint seeking for specific performance of an agreement of sale: (a) to grant a decree in favour of the Plaintiff for Specific Performance of Executed Sale Deed dated 20.11.2006 by directing the defendants to register the executed sale deed in favour of the plaintiff and on their failure, the Hon'ble Court may be pleased to register the Deed in favour of the Plaintiff and deliver the possession of the suit properties. (b) award the cost of the suit. (c) pass such further or other relief as this Hon'ble Court deem fit and proper in the circumstances of the case. (ii) Admittedly, an ex parte decree has been passed granting the relief of the specific performance in favour of the respondent/plaintiff. (b) award the cost of the suit. (c) pass such further or other relief as this Hon'ble Court deem fit and proper in the circumstances of the case. (ii) Admittedly, an ex parte decree has been passed granting the relief of the specific performance in favour of the respondent/plaintiff. (iii) In the judgment dated 21.01.2008 passed in O.S. No.75 of 2007, even though the respondent/plaintiff in his prayer in the plaint had sought for a direction from the Court that in case of failure of the petitioners / defendants to execute the sale deed, the Court will have to execute the sale deed in his favour, whereas, the Trial Court has omitted to include the same in its operative portion of its judgment and decree dated 21.01.2008. (iv) – (a) Section 152 CPC reads as follows : 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. (b) Section 152 CPC is an inherent power of the Court. Inherent powers of the Court are those powers which may be applied by the Court to perform full and complete justice between the parties before it. (c) As seen from Section 152 CPC, the Court is empowered to amend its judgment, decrees or orders, if there were clerical or arithmetical mistakes due to any accidental slip or omission and it can be done on its own motion or on an application filed by any of the parties. The instant suit is a suit for specific performance and the trial Court has been convinced that the respondent/plaintiff is entitled for a specific performance decree. The respondent/plaintiff has also sought for the relief, which was left out by the Trial Court in its judgment and decree dated 21.01.2008, which was amended under the impugned order dated 18.09.2019. The omission that was made by the Trial Court is only in the nature of a default clause that, in the event of the petitioners/defendants failing to execute the sale deed in favour of the respondent/plaintiff, the Court shall execute the sale deed in favour of the respondent/plaintiff. The omission that was made by the Trial Court is only in the nature of a default clause that, in the event of the petitioners/defendants failing to execute the sale deed in favour of the respondent/plaintiff, the Court shall execute the sale deed in favour of the respondent/plaintiff. Therefore, this Court is of the considered view that the omission to include the aforesaid relief is only a clerical mistake, which has been accidentally omitted to be included in the judgment and decree dated 21.01.2008 passed in O.S. No.75 of 2007. (d) When the Trial Court has unequivocally held that the respondent / plaintiff is entitled for specific performance, the second part of the prayer sought for by the plaintiff ought to have been naturally granted, which has been omitted and in the considered view of this Court is an inadvertent omission. Therefore, this Court is of the considered view that the omission to include the relief “that in case the petitioners / defendants fails to execute the sale deed, the Courts shall execute the sale deed in favour of the respondent / plaintiff” by the Trial Court in its judgment and decree dated 21.01.2008 is an accidental slip which will have to be necessarily amended under Section 152 CPC. (v) Insofar as the inherent powers of the Courts are concerned, which is also the case as regards Section 152 CPC, the question of limitation will not arise as the limitation Act or the CPC does not bar the amendment of the decree at any point of time. (vi) The judgment and decree dated 21.01.2008 passed in O.S. No.75 of 2007, which was amended under the impugned order dated 18.09.2019 in I.A.No.1 of 2019, is an ex parte decree. If at all the petitioners/defendants are aggrieved by the ex parte decree, they have to file necessary application to set aside the ex parte decree showing sufficient grounds. Instead of doing so, the petitioners/defendants have wrongly approached this Court challenging the impugned order passed under Section 152 CPC, which is not maintainable under law. 9. This Court does not find any infirmity or illegality in the impugned order passed by the Trial Court and absolutely there is no merit in the Civil Revision Petition. Accordingly, the Civil revision Petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.