CHINTA MANI Vs. DEBI PRASAD

JUDGEMENT

(1.) This is an application in civil revision brought by a plaintiff-decree holder against an order of 10 August 1933, of the Deputy Commissioner of Garhwal. The facts are that there was a suit brought by the plaintiff, the present applicant, asking for the cancellation of a deed of gift and a declaration that a deed of gift did not affect his rights. This suit was dismissed with costs on 29 November 1929. A first appeal was brought by the plaintiff and was decided by this Court on 17th November 1932, and was dismissed with costs. Subsequently on 10 May 1933, the defendant made an application to the Subordinate Judge to amend the decree, the application being under Section 152, Civil P.C., on the ground that there was a clerical or arithmetical mistake in the decree. The mistake in question was in regard to the fee allowed to the successful defendant. The valuation of the suit was Rs. 6,000. The percentage admissible on this was Rs. 270, but the decree contained Rs. 6.4-0 only. The Court without issuing notice to the plaintiff amended the decree on 26 June 1933. On 13 July 1933, the plaintiff made an application to the Court asking the Court to review its order on the ground that the plaintiff had no notice and on the ground that the Court had no jurisdiction because according to the plaintiff the decree had merged in the decree of the appellate Court and therefore such an application for correction of a clarical or arithmetical error would only lie to the appellate Court, that is, to the High Court. The lower Court passed an order on 10 August 1933, to the effect that the error was an obvious arithmetical error, that no new facts were disclosed in the High Court, that arithmetical errors can be corrected at any time under Section 152, Civil P.C., and the application was rejected. A further grievance is made that the plaintiff states that he was not informed of the date when his application was considered. The revision is directed against this order on 10 August 1933, refusing to review the order of correction. A preliminary objection was taken that no revision lies against an order refusing a review. Learned Counsel referred to Lakshman Maruti V/s. Maruti Lakshman 1924 Bom. 344. This statement no doubt is laid down in that ruling, but the ruling proceeded to consider the merits of the order and held that the Court below was correct in its application of law. It therefore appears to me that the proposition in question was not laid down as an abstract one.

(2.) Learned Counsel referred to Brijnarain V/s. Tejbai Bikram Bhahadur (1910) 32 All. 295, for the proposition that the Court below could not amend its decree when the decree had merged in the decree of the appellate Court. That ruling however dealt with the case of a lower Court; amending its decree by striking out the provisions for future interest in the decree. It is obvious that this was not a case of correction of a clerical or arithmetical error under Section 152. The ruling therefore does not apply to the section in question. No authority was shown by the applicant in revision for his proposition. It appears to me that Section 152, Civil P.C, deals with the special lease of correction of clerical and arithmetical mistakes. In regard to that particular class of correction the section provides that the correction may "at any time" be made by the Court either on its own motion or on the application of the parties." I consider that the words "at any time" have a special significance in this section. The significance which those words have in my opinion is that they provide for a case like the present where the decree of the Court below has merged in the decree of the appellate Court. The section in my opinion given the lower Court power even in such a case to make an amendment if the amendment is merely of a clerical or arithmetical mistake. It would be highly inconvenient if it were necessary for such mistakes to form the subject of application in this Court. If the order of his Court is desired, an application may be made in review. As regards the merits of the application, it is necessary that there should be a certificate for the receipt of fees placed on the record before the order of dismissal of the suit which was on 29 November 1929. There are three certificates on the record as follows : For Rs. 150 filed on 5 November 1929. Fur Rs. 20 filed on the same date and For Rs. 70 filed on 4 November 1929.

(3.) There is no certificate on the record an it stands at present for the balance of Kit, 30. Accordingly, I consider that the correct order in the interests of justice in that this revision should be allowed so far as it concerns Rs. 30 of the amount in question and that the revision should too dismissed so far as it concerns the remaining Rs. 240, that is, the correction of the decree will stand varied for Rs. 240. I may note that even if my view of the law were incorrect and it was not open to the Court below to act under this section, this decree is a decree of this appellate Court and it is still open to me to correct that decree under the provisions of Section 152 and I make the correction accordingly. I may note that this is within the competence of a Single Judge as the amount in question is less than Rs. 1000.