KANNAN Vs. NARAYANI

JUDGEMENT

(1.) S.152 of the Code of Civil Procedure empowers a court either on its own motion or on the application of any of the parties to correct, at any time, clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. Is a court competent to exercise this power of correcting its own judgment, decree or order in cases where such decree, judgment or order has been the subject of appeal to the higher court even if such court merely confirmed the judgment, decree or order of the lower court Our learned brother Vadakkel J. before whom this revision came up felt that the view expressed by a Division Bench of this Court in Malayalam Plantations Ltd. v. Varkey Chacko, ( 1969 KLT 710 ) that the Court of first instance has inherent power to correct accidental slips and errors committed by it as envisaged under S.152 of the Code despite the fact that the decree and judgment of that court have been confirmed, varied or reversed by the appellate court called for consideration by a larger Bench. The case came on reference to the Division Bench. The matter was referred to a Full Bench as the Division Bench felt that it was the correctness of the decision of a Division Bench of this Court that was doubted.

(2.) In the case before us an application for amending the judgment dated 31-8-1967 in O. S. No. 887 of 1965 of the Munsiff's Court of Nadapuram, a suit for partition, was rejected by the court by its order dated 12-9-1977, the Court observing that the judgment was challenged in appeal and second appeal and consequently the decree of the court of first instance had merged into the decree of the appellate court in second appeal. It was found that in such a case there was no power in the Court of first instance to amend the judgment. The amendment sought for concerned the correction in the judgment of the details of allotment of shares to which the petitioners lay claim. The petitioners claim to have obtained an assignment of the shares of defendants 9 to 16 and 19 to 23 in the B Schedule items. Their complaint is that though the assignment to them was noticed in Para.18 of the judgment, by an accidental slip this is not noticed in para.20 of the judgment with the consequence that the items were described as pertaining to the shares of the defendants 22 and 23. We are not at the moment concerned with the question whether this could be said to be an accidental slip or omission. The scope of the power to effect a correction under S.152 will have to be decided by the court below in case it is found to have authority to entertain the application for amendment. That court has not exercised such power for the reason that once the appeal against its judgment has been disposed of it should not correct its judgment in exercise of the power under S.152. How far this view is sustainable in law is the matter arising for consideration by us in this case.

(3.) Vaidialingam, J. who was then a learned Judge of this Court had in Kesavan v. Gopalan (1964 KLR 155) occasion to consider the question of merger when a decree of the original court is confirmed by the appellate court. In that case motion for correction under S.152 was made in the court of first instance but in view of the fact that the judgment of that court was the subject of decision in appeal, the learned Judge held that the rule of merger operated to render the appellate court alone competent to effect any amendment. Evidently this rule was not followed by the Division Bench in 1969 KLT 710, a case where the court held that there was an inherent power in the court of first instance to act under S.151 and S.152 of the Code notwithstanding the fact that the case had been subjected to an appellate decision. In taking this view the court was persuaded by the decisions of the Supreme Court in Samarendra v. Krishna Kumar ( AIR 1967 SC 1440 ) and in Janakirama Iyer v. Nilakanta Iyer ( AIR 1962 SC 633 ). It would be appropriate to examine the scope of the decisions of the Supreme Court in view of the challenge to the correctness of the Division Bench decision before us.