DEVAKINANDAN YADAV Vs. STATE BANK OF INDORE, SAGAR

JUDGEMENT

(1.) AFTER the judgement was delivered on 23 -11 -1995, the plaintiff/non -applicant No. 1 made an application to the Court invoking its powers under sections 151 and 152, Civil Procedure Code interalia pleading that the findings recorded in paragraph 15, 16 and 17 of the judgement and consequently creeping in the decree are result of errors arising therein from accidental slip and omission, therefore, the same may be corrected. The application was opposed by the present applicant, but it was, however, allowed by the learned trial Court directing that paragraph 15, 16 and 17 of the judgement be substituted by the fresh paragraphs written by the learned trial Court on the date of the order. The brief facts necessary for disposal of the revision are that the plaintiff filed a suit for recovery of Rs. 2,33,921.95/ - against the present applicant and non -applicant No. 2. The suit was contested on merits and on all other possible grounds. After recording the evidence and hearing the parties, the trial Court while deciding issue No. 2 held that a sum of Rs. 2,33,921.95 was due towards the defendants. While deciding issue No. 6, the Court recorded a finding that during pendency of the suit a sum of Rs. 2,02,000/ - was paid by the defendants, therefore, after adjusting the said amount the plaintiff would be entitled to a decree for Rs. 31,921.95 paisa only. In paragraph 16, the Court relying upon its earlier findings directed that the plaintiff would be entitled to a sum of Rs. 31,921.95 paisa with interest at the rate of 17.5% quarterly rest per annum. In para 17 the Court again observed that suit of the plaintiff is partly decreed and the defendants are directed to pay the amount of Rs. 31,921.95 paisa and should also pay the interest at the rate of 17.5% per annum with quarterly rest from the date of the suit that is 7 -12 -1993. A decree in terms of the said finding was prepared directing the defendants to pay Rs. 31,921.95 with interest as observed above. The plaintiff made an application under section 151 read with section 152, Civil Procedure Code inter alia submitting to the Court that because of an accidental slip or omission, the wrong findings were recorded. It was submitted that the amount of Rs. 2,02,000/ - was not paid during pendency of the suit, but was paid before institution of the suit, therefore, the Court was required to correct the accidental slip and omission and was required to decree the suit in full and ask the defendants to pay the total amount of Rs. 2,33,921.95 paisa with costs and interest. After hearing the parties, the learned trial Court held that as the defendants did not raise the plea that the amount of Rs. 2,02,000/ - was paid by them during pendency of the suit and as the Court wrongly recorded the finding that the amount was paid during pendency of the suit, paragraphs 15, 16 and 17 of the judgement deserve to be substituted by granting a decree in full amount in favour of the plaintiff asking the defendants to pay the entire suit amount with costs and interest. Being aggrieved by the said order, the applicant has filed this revision petition. Submission of learned Counsel for the applicant is that while exercising powers under section 152, Civil Procedure Code, the Court can correct a clerical or arithmetic mistakes or errors arising in the judgements, decrees or orders from any accidental slip or omission, and as, there was no accidental slip or omission or clerical or arithmetical mistake in the judgement delivered by the Court, the Court below was not entitled to exercise its powers under section 152, Civil Procedure Code. It was also contended that present was not a fit case for exercising powers under section 151, Civil Procedure Code. Shri Wajid Haider, learned Counsel for the Bank, on the other hand submits that every error arising in the judgement, decree or order if is a result of accidental slip or omission, the same may be corrected by the Court in its powers under section 152, Civil Procedure Code and in any case when the Court finds that an injustice would be caused to the other side, it can correct the errors exercising its inherent powers as vested in it under section 151, Civil Procedure Code. I have heard the parties at length and have perused the records.

(2.) THERE can be no dispute that while deciding the issue about the total liability of the defendants, the trial Court in paragraph 15 of its judgement observed that the defendants were liable to pay a sum of Rs. 2,33,921.95 paisa. At the same time, the Court also recorded a finding that as the defendants during currency of the suit had paid a sum of Rs. 2,02,000/ -, after giving the adjustment of the said amount the plaintiff would be entitled to a decree for Rs. 31,921.95 paisa only. From a perusal of paragraph 15, it would not appear that present was a case of error arising in the judgement from any accidental slip or omission. In fact the Court was alive to the situation as to what should have been the decree against the defendants. The Court found that on the date of the suit a sum of Rs. 2,33,921.95 paisa was due, but at the same time the Court found that during pendency of the suit sum of Rs. 2,02,000/ - was paid to the plaintiff by the contesting defendants. Whether the plea of payment during the pendency of the suit was raised or not would not be material for disposal of an application under section 152, Civil Procedure Code. It must appear to the Court before it exercises its powers under section 152, Civil Procedure Code that the error has crept in the judgement by an accidental slip or omission. In the present case, the Court being alive to the situation did record a finding. The finding may be condemned as bad, contrary to the pleadings or perverse, but such a finding which is based on the merits of the matter cannot be annuled by the same Court exercising its powers under section 152, Civil Procedure Code. The Court had the jurisdiction to exercise its powers under Order 47, Civil Procedure Code by reviewing the order if it was of the opinion that the error was apparent on the face of the record, but an error which relates to the merits of the matter cannot be corrected under section 152, Civil Procedure Code. So far as section 151, Civil Procedure Code is concerned, it says that notwithstanding anything in the Code nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. If the Code of Civil Procedure does not provide for any provisions under which a wrong can be corrected, then a Judge exercising his powers under section 151, Civil Procedure Code can always correct the wrong committed by the Court. In the present case, I am unable to hold that the plaintiff did not have any remedy under the provisions of the Code of Civil Procedure. Powers under section 151, Civil Procedure Code can only be exercised if there are no other provisions in the Code. Assuming that such powers could be exercised by the Court, then too the Court was required to show that such powers were required to be exercised in accordance with law to do complete justice between the parties. In the present case, the finding recorded in the original judgement is that defendants, during pendency of the suit did pay a sum of Rs. 2,02,000/ -, therefore, the said amount was required to be adjusted. The said finding, by no stretch of imagination, can be said to be an accidental slip or omission. Before recording that finding and finding the liability of the defendants, the Court has categorically stated that during pendency of the suit an amount of Rs. 2,02,000/ - was paid by the defendants to the plaintiff. The finding as recorded by the lower Court appears to be a finding arrived at after appreciating the matter and the evidence available on the record.

(3.) IN the matter of Dwaraka Das vs. State of M.P. and another, : (1999) 3 SCC 500, the Supreme Court has considered the scope of section 151 and 152, Civil Procedure Code. Para 6, for the purposes of the present petition, is material. It reads as under: - - section 152, Civil Procedure Code provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders of 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 judgement, decree or order. The settled position of law is that after the passing of the judgment, decree or order, the 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 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 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, however 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 Civil Procedure Code even after passing of effective orders in the lies 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 respondent -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 insofar as pendente life 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 30 -11 -1973. The High Court was, therefore, justified in setting aside the aforesaid order by accepting the revision petition filed by the State. From a perusal of the passage quoted above, it would clearly appear that the exercise of the powers under section 152, Civil Procedure Code contemplates the correction of mistakes by the Court of its ministerial actions and does not contemplate of passing effective judicial orders after the judgement, decree or order. If the order passed by the learned Court below is allowed to stand, it would infact mean that this Court would allow the effective judicial order passed by the lower Court under section 152, Civil Procedure Code. According to Supreme Court, after passing of the judgment, decree or order, the Court becomes functus officio and thus is not entitled to vary the terms of the judgments, decrees and orders earlier passed. The Supreme Court was clear when it stated that the omissions sought to be corrected which go to the merits of the case are beyond the scope of section 152, Civil Procedure Code for which the proper remedy for the aggrieved party is to file an appeal or review application. Relating to exercise of powers under section 151, Civil Procedure Code, the Supreme Court in the same matter has observed that no Court can, under the cover of section 151 and 152, Civil Procedure Code modify, alter or add to the terms of its original judgement, decree or order. In the instant case even if it is assumed that the trial Court was exercising its powers under section 151, Civil Procedure Code, then too it cannot be permitted to modify, alter or add to the terms of the judgement or decree. While disposing of the suit, the Court clearly found that the defendants were liable to pay sum of Rs. 31,921.95 paisa, but by the amended order the Court is asking the defendants to pay sum of Rs. 2,33,921.95 paisa. By this amendment, the Court is virtually asking the defendants to pay more than what they were required to pay in the earlier judgement. The Court below had no jurisdiction to alter, modify or correct or add to the terms of its original judgement either under section 151 or 152, Civil Procedure Code.