MOHAMMAD Vs. DISTRICT JUDGE MIRZAPUR

JUDGEMENT

(1.) D. K. Seth, J. On 8th May, 1978 the suit filed by the Aziz Ahmad, predecessor-in-interest of respondents 3 to 10 was decreed. The said decree was affirmed in Civil Appeal No. Ill of 1978 by a decree dated 25th July, 1981. Second Appeal No. 1328 of 1981 arising thereout stood dismissed on 9th January, 1984. The petitioner applied for preparation of final decree on 20th July, 1985 when it was found that though the suit was a suit for redemption and the decree was to be drawn in terms of Order XXXIV, Rule 7, C. P. C. but such statement was omitted to be mentioned through accidental slip in the decree dated 8th May, 1978 though in the decree it was recorded that the suit for redemption was being decreed. The portion which was omitted to be incorporated through accidental slip is purely a formal and technical one. A preliminary decree is to be drawn up in a suit for redemption in the form given in Forms No. 7 or 7-A, 7- B, 7-C of Appendix D while final decree is drawn up according to Forms 7-D and 7-E of Appendix D. The said decree is drawn up on the basis of the decree passed. Such decrees are passed according to Order XXXIV, Rule 7, which is normally mentioned in the order itself. As soon the same is mentioned, the decree is drawn up according to the Forms applicable. When the suit has been decreed for redemption, the same is a preliminary decree until the final decree is drawn up. Omission to mention that the same is a preliminary decree passed in terms of Order XXXIV, Rule 7 does not alter the decree or amend the same. Neither the same adds anything to it. The decree is not varied by reason of insertion of such inscription. Section 152 of the Code of Civil Procedure empowers the Court to correct clerical or arithmetical mistake in Judgments, decrees or error arising therein from any accidental slip or omission at any time either on its own motion or on the application of the parties. In the present case, admittedly the omission is not clerical or arithmetical mistake but is an error arising out of accidental slip or omission. The Court is empowered to correct such errors at any time. The Court can correct it either on the basis of an application or on its own motion. While passing a decree for redemption, the court has omitted accidentally through an accidental slip to mention the said inscription. It is an established principle of law that party should not be compelled to suffer for any mistake on the part of the Court even without an ap plication, the said mistake could have been corrected by the Court on its own mo tion. Therefore, it cannot be said that the Court had no jurisdiction to correct the same on the basis of the application as has been made in the present case. The omission is an error arising out of accidental slip or omission that has been observed earlier by me.

(2.) THEREFORE, the contention on behalf of the petitioner that the same is not an accidental slip and that the Court has no jurisdiction to correct the same has no substance.

(3.) ADMITTEDLY the decree is a decree for redemption in which preliminary decree in terms of Order XXXIV Rule 7 is passed and the decree is to be drawn according to Form No. 7 of Appendix-D by the Trial Court for the purpose of execution. Therefore, while the trial court is entitled to draw the decree which is in seisin of the matter. Over and above in terms of Order XXXIV, Rules 7 and 8, a final decree is to be drawn. After the High Court has affirmed the decree the suit is before the trial court which has not become functus officio after the decree was passed by reason of having the seal of the High Court. Inasmuch as it is the trial court where the suit is returned for proceeding in accordance with the terms of the preliminary decree to the drawn up and only when the consequences of the terms contained in Order XXXIV Rule 7 ensue, then the final decree is to be drawn in terms of Rule 8 according to the situation available. Therefore, the trial court has jurisdiction to proceed with the suit after the decree is affirmed by the High Court and the suit has not come to an end. It is only the preliminary decree that has been affirmed and with which the trial court is to proceed on the basis of such decree. Therefore, the trial court is in seisin of the entire matter before it. While proceeding with the suit, it has to carry on the procedure in terms of Order XXXIV, Rule 7, namely, to take into account as to what was due to the defendant on the date of such decree for the principal and interest, cost of the suit and expenses incurred by the defendant upto date in respect of security together with interest thereon and declaring the amount due on that date. The operation of the decree remained stayed during the pendency of the appeal and the operation was only revived only when the proceeding pending before the High Court is terminated. Before the final decree is passed, the procedure laid down in Rule 8 ought to be followed and only thereafter the final decree is to be passed. Therefore, it cannot be said that the trial court had lost its jurisdiction over the suit. The preliminary decree is subject to the final decree according to the situa tion contemplated in Order XXXIV, Rules 7 and 8. Therefore, in such cases, it is the trial court who retains the jurisdiction to proceed with the suit and has jurisdiction to correct the decree under Section 152 of the Code. In Murari Lal v. Dev Karan AIR 1965 SC 225, it has been held that the High Courts in India conformed to the view that whether or not there is a statutory provision directing the Judges to give effect to the principles of justice, equity and good conscience, it is their duty to enforce that principle where they are dealing with stipulations introduced in mortgage transac tions which appear to them to be unreasonable, oppressive or unjust. The equitable principle of justice, equity and good conscience has been consistently applied by Courts in dealing with mortgages and lends support to the contention that if a mortgage deed contains a stipulation which unreasonably restrains or restricts the mortgagors equity of redemption courts were empowered to ignore that stipulation and enforce the mortgagor's right to redeem. The above principle would be advanced if the correction is allowed and if not the said principle would be defeated even then it was a decree for redemption. Therefore, it is to be drawn according to Order XXXIV, Rule 7. The Court in not supposed to pass an infructuous decree and be an idle on looker in the difficulty created. It is the Court who has to remove such difficulties when circumstances so demand.