In 2009 SAR civil 407 SC (Tilak Raj vs Baikunthi Devi (D) by Lrs, the Apex Court has held as follows:
'14. The aforesaid mistake was of clerical nature which could have been corrected by applying the provisions of Section 152 of the CPC. Counsel appearing for the respondents also during his submissions fairly accepted the aforesaid position. The remedy that was available to the appellant was to file an application seeking for amendment of the decree by way of correcting the clerical mistake in respect of Khasra Number. Since the mistake was clerical in nature and the appellant being not responsible for the said clerical mistake which had occurred due to wrong recording of Khasra Number in Khasra Girdawari, we find no reason as to why such a genuine and bona fide mistake cannot be allowed to be corrected by exercising the powers under Section 152 of the CPC. In K. Rajamouli vs A.V.K.N. Swamy (2001) 5 SCC 37 this Court held as follows: 'Section 152 provides that a clerical or arithmetical mistake 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 .
15. Since the court exists to dispense justice, any mistake which is found to be clerical in nature should be allowed to be rectified by exercising inherent power vested in the court for sub-serving the cause of justice. The principle behind the provision is that no party should suffer due to bona fide mistake. Whatever is intended by the court while passing the order or decree must be properly reflected therein otherwise it would only be destructive of the principle of advancing the cause of justice. In such matters, the courts should not bind itself by the shackles of technicalities.'1
Madras High Court
(Order Of The Court Made By G.M. ... vs Unknown
K. MOHAN RAM.,J.,AND
G.M. AKBAR ALI,J.,
(Order of the Court made by G.M. AKBAR ALI,J.,)
Civil Miscellaneous Petition filed to amend the defect in the decree dated 14.2.2002 in L.P.A No.3 of 1998 in accordance with the judgment thereby enabling the petitioner to execute the same for recovery of possession of the property in O.S No.5728 of 1981 on the file of the V Assistant City Civil Court, Chennai.
2. The petitioner filed a suit in O.S No.5726 of 1981 on the file of the V Assistant City Civil Court, Chennai for a declaration of the title to the suit property and for delivery of vacant possession after removing the superstructure.
3. The respondent herein resisted the suit. The suit was dismissed on 23.3.1984. The respondent filed a suit and the same was decreed in his favour. The appeal preferred by the petitioner in A.S No.111 of 1985 on the file of this Court and a Transfer Appeal No 163 of 1987 were taken up together before this Court and by a common judgment both appeals were dismissed. Against which Letters Patent Appeal in 3 and 4 of 1998 were preferred by the petitioner.
4. By a common judgment dated 14.3.2002 both letters patent appeals were allowed. A decree in LAP No.3 of 1998 was also drafted and issued to the petitioner. The respondent preferred an appeal before the Hon ble Supreme Court in Civil Appeal No.2078 and 2079 of 2003 on 29.3.2011 and the appeals were also dismissed by the Apex Court. Thus the decree and judgment in L.P.A.No.3 of 1998 has become final.
5. In April 2002, the petitioner filed an Execution Petition in E.P.No.696 of 2002 on the file of the X Assistant City Civil Court Chennai. The respondent raised a preliminary objection as to the maintainability of the execution petition pointing out that the decree passed in LPA No.3 of 1998 is non-executable as the judgment and the decree did not set forth that the original suit was decreed for a declaration and recovery of possession. According to the respondent, in effect, there is no provision for recovery of possession.
6. Therefore, the present petition is filed to rectify the mistake and amend the decree dated 14.3.2002 in LAP No.3/98.
7. Mr.G.Jeremiah, the learned counsel for the petitioner would submit that the original suit was filed for declaration and recovery of possession and the trial court as well as the 1st appellate court dismissed the suit and therefore, an appeal under Letters Patent appeal was filed before a Division Bench. The learned counsel pointed out that the Division Bench had allowed the appeal, thereby setting aside the decree and judgment of dismissal and decreed the suit.
8. According to the learned counsel, the judgment and decree has become final as the same was also confirmed by the Hon ble Supreme Court. The learned counsel pointed out that while drafting the decree in L.P.A, the registry of this court had only set aside the decree passed in the appeals against which the L.P.A was preferred. The consequential relief of decreeing the suit for declaration of title and recovery of possession was not incorporated.
9. The learned counsel pointed out through setting aside the decree and judgment in the appeal itself implies granting of decree in the suit. The respondent has raised an objection before the executing court. Therefore, the petitioner is constrained to file the present petition for amendment of the decree in accordance with the judgment in L.P.A.
10. On the contrary, Mr.M. Kumaraswami, the learned counsel for the respondent would submit that this court has no jurisdiction or power to amend the decree and would also submit that the decree has merged with the order of the Apex Court and therefore, the petitioner cannot approach this court for amendment of decree.
11. The learned counsel also pointed out that the petitioner having taken advantage of the decree passed in the L.P.A has to be satisfied herself only with the present decree as she has not challenged the same in the subsequent proceedings and according to the learned counsel the petitioner decree holder having defended the decree before the Apex Court, now cannot go back on the decree.
12. The learned counsel also invited the attention to Or 49 Rule V of C.P.C, Or.41 Rule 35 of CPC and also Sec.100(A) CPC . He also relied on a decision reported in 2001 3 MLJ 33 SC (Jayalakshmi Coelho vs Oswald Joseph Coelho) for the preposition that the court must be legally satisfied and arrived at a valid finding that the order or decree contains or omits something which was intended to be otherwise and the court cannot rectify mistakes.
13. The learned counsel also relied on a decision reported in AIR 1960 Bombay 447 (Shirin Vishnu Kirpalani vs Vishnu Hiranand Kirpalani) where Order 41 Rule 35 and Or 49 Rule 3 are dealt with.
14. Countering the said submissions, Mr. Jeremiah, the learned counsel for the petitioner would rely on a decision reported in 2009 SAR civil 407 SC (Tilak Raj vs Baikunthi Devi (D) by Lrs, where the Apex Court has held that the Courts are empowered to correct the clerical mistakes under Sec.151 of Civil Procedure Code.
15. We have carefully considered the rival contentions put forth on either side and perused the materials available on record.
16. The dates and events are admitted. The petitioner has filed the original suit in OS No.5726 of 1981 for the declaration of title and recovery of vacant possession after removing the superstructure. Though the petitioner had lost in the trial court as well as in the first appellate court, in the appeal preferred under Letters Patent Appeal, the Division Bench of this court found that she was entitled for the relief.
17. In para 30 of the judgment, it is stated ` for these reasons, we are of the view that the judgments and decree of both the trial court as well as the learned Judge (appellate) cannot be sustained. Consequently, both appeals are allowed'.
18. While drafting a decree, the Registry has drafted as follows:
`1. That the decree passed in the exercise of the Appellate Jurisdiction of the High Court in Appeal No.111 of 1985 be and is hereby set aside and this Appeal allowed . Sec.33 of CPC deals with judgment and decree in suit which reads as follows:.
Judgment and Decree: The Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow.
Sec.152 reads as follows:
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. Or.41 Rule 35 reads as follows:
35. Date and contents of decree:
(1) The decree of the Appellate Court shall bear date the day on which the judgment was pronounced
(2) The decree shall contain the number of the appeal, the names and descriptions of the appellant and respondent, and a clear specification of the relief granted or other adjudication made (3) The decree shall also state the amount of costs incurred in the appeal, and by whom, or out of what property, and in what proportions such costs and the costs in the suit are to be paid. (4) The decree shall be signed and dated by the judge or judges who passed it.
Or.49 Rule 3 read as follows:
Application of rules:- The following rules shall not apply to any Chartered High Court in the exercise of its ordinary or extraordinary original civil jurisdiction, namely:- (1) Rule 10 and Rule 11, clauses (b) and (c) or Order VII;
(2) Rule 3 of Order X
(3) Rule 2 of Order XVI
(4) Rules 5,6,8,9,10,11,13,14,15 and 16 (so far as relates to the manner of taking evidence of Order XVIII;
(5) Rules 1 t 8 of Order XX; and
(6) Rule 7 of Order XXXIII (so far as relates to the making of a memorandum); and Rule 35 of Order XLI shall not apply to any such High Court in the exercise of its appellate jurisdiction.
19. The contention of the learned counsel for the respondent that Order 41 Rule 35 and Order 49 Rule 5 is attracted is unsustainable for the simple reason that the present prayer for amendment is not relating to the date of decree. Under Sec.152, the clerical mistakes in decrees or errors arising therein from any accidental slip or omission may at any time be corrected by the Court. There is no time limit.
20. In 2001 (3) MLJ 33 SC (Jayalakshmi Coelho vs Oswald Joseph Coelho) the Apex Court has held as follows:
`13. So far as the legal position is concerned, there would hardly be any doubt about the proposition that in terms of Sec.152., C.P.C., any error occurred in the decree on account of arithmetical or clerical error or accidental slip may be rectified by the Court. The principle behind the provision is that no party should suffer due to mistake of the Court. Whatever is intended by the Court while passing the Order or decree must be reflected therein. Otherwise, it would only be destructive to the principle of advancing the cause of justice. A reference in the following cases on the point may be made. The basis of the provision under Sec.152 C.P.C is found on the maxim actus curiae neminen gravabit i.e., an act of Court shall prejudice no man
21. In 2009 SAR civil 407 SC (Tilak Raj vs Baikunthi Devi (D) by Lrs, the Apex Court has held as follows:
'14. The aforesaid mistake was of clerical nature which could have been corrected by applying the provisions of Section 152 of the CPC. Counsel appearing for the respondents also during his submissions fairly accepted the aforesaid position. The remedy that was available to the appellant was to file an application seeking for amendment of the decree by way of correcting the clerical mistake in respect of Khasra Number. Since the mistake was clerical in nature and the appellant being not responsible for the said clerical mistake which had occurred due to wrong recording of Khasra Number in Khasra Girdawari, we find no reason as to why such a genuine and bona fide mistake cannot be allowed to be corrected by exercising the powers under Section 152 of the CPC. In K. Rajamouli vs A.V.K.N. Swamy (2001) 5 SCC 37 this Court held as follows: 'Section 152 provides that a clerical or arithmetical mistake 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 .
15. Since the court exists to dispense justice, any mistake which is found to be clerical in nature should be allowed to be rectified by exercising inherent power vested in the court for sub-serving the cause of justice. The principle behind the provision is that no party should suffer due to bona fide mistake. Whatever is intended by the court while passing the order or decree must be properly reflected therein otherwise it would only be destructive of the principle of advancing the cause of justice. In such matters, the courts should not bind itself by the shackles of technicalities.'
22. The decree drafted by this court in LPA No.3 of 1998 does contain a clause that the decree passed in Appeal No.111 of 1985 is set aside and the appeal is allowed. However, the judgment would show the judgments and decrees of both the trial court as well as the learned Judge (appellate) cannot be sustained. Consequently, both the appeals are allowed . This implies that in the original suit the decree of dismissal dated 23.3.84 is set aside and the suit is to be decreed as prayed for.
23. The contention of the learned counsel for the respondent that the decree has been merged with the order of Hon ble Supreme court is also unsustainable. In any event, there is no special provision in Letters Patent Appeal to draft a decree. Therefore, while drafting a decree in LPA No.3 of 1998, the Registry should have set forth the consequential relief of decreeing the original suit declaring the title of the plaintiff therein(petitioner) to the suit property and delivery of vacant possession and also for other reliefs as mentioned in the prayer paragraph of the plaint.
24. It is a clerical mistake and an error apparent and this Court is empowered to exercise sec.152 of CPC to amend the same.
25. In the result, the petition is allowed and the Registry is directed to amend the decree by inserting the following after the 1st paragraph of the decree.
2. The suit in O.S.No.5728 of 1981 is decreed declaring the title of the plaintiff to the suit property and for delivery of vacant possession of the same after removing the superstructure thereon viz., Old No.60-B, New No.3, Loyyods Road, II lane, Royappettah, Chennai-14.
3. The defendant shall handover vacant possession to the plaintiff within a period of three months from the date of receipt of the copy of this decree.
4. that the respondent shall pay the appellant a sum of Rs.125/- (Rupees one hundred and twenty five only) towards the cost of this L.P.A and the cost of the lower court as when taxed by the court below.
26. Since execution petition is pending, the court below is directed to accept the amended decree and dispose of the case within a period of three months from the date of receipt of this order. As far as the CMP is concerned, No costs. (K.M.J.,) (G.M.A.J.,)
15-11-2011
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