Keith Nazareth, Indian Inhabitant vs Miriam Dossa, Indian Inhabitant

A.P. Lavande, J

Heard Mr. S. Usgaonkar, learned Advocate for the applicant and Mr. R. V. Kamat, learned Advocate for the respondent. By this application u/s 152 of C.P.C., the applicant who is appellant in Second Appeal Nos. 8/1997 and 9/1997 seeks deletion and addition of some words in paragraph 3 of the Judgment and Order dated 17.12.2004 passed by learned Single Judge of this Court.

Paragraph 3 of the Judgment passed in two Second Appeals reads thus:-

The plaintiff is the owner of a property known as "Maddem" having land registration NO. 29031, matriz NO. 2290 surveyed under NO. 114/5 with a house in it, situated in Umtawaddo of Calangute Village."

It is the case of the applicant that in paragraph 3 by inadvertence it has been mentioned that property known as "Maddem" is surveyed under NO. 114/5 with a house in it, actually it is the house which bears Village Panchayat NO. 114/5 and not the property and as such words "surveyed under NO. 114/5" are to be deleted and words "bearing Village Panchayat NO. 114/5" be added after the words "with a house in it".

Mr. Usgoankar, learned counsel appearing for the applicant submitted that the error is obvious and therefore the same deserves to be corrected in exercise of powers vested in this Court under Sections 151 and 152 of C.P.C. In support of his submissions learned Counsel relied upon following Judgments:-

In the case of Jai Narain and Others Vs. Chheda Lal and Others, .

In the case of Beche Lal and Others Vs. Hem Singh and Others, .

Mr. Usgaonkar, therefore submitted that judgment be accordingly corrected.

Per contra, Mr. R. V. Kamat, learned Advocate for the respondent submitted that the decree has been already executed and as such this Court has become functus officio and therefore the question of making any corrections in the Judgment at this stage does not arise. In support of his submission Mr Kamat relied upon the Judgment in the case of A. Palanivel Chettiar Vs. R. Elumalai, .

I have carefully considered the rival submissions and perused the record.

From the perusal of the judgment dated 17.12.2004 in Second Appeal Nos.8/1997 and 9/1997 and the record, it is evident that the property "Maddem" was not surveyed under NO. 114/5 but the house existing in it has village Panchayat NO. 114/5. This being the position it is clear that there is an inadvertent error in paragraph 3 of the judgment.

The main question which arises for consideration is whether in view of the execution of decree this Court has jurisdiction to allow any correction in the judgment on the ground of error on account of accidental slip.

In the case of Jai Narain( supra) and Beche Lal(supra) learned Single Judges of Allahabad High Court have held that error in decree arising from accident slip/omission may at any time be corrected and the only limitation upon this power is to find in cases where third parties have acquired rights. Learned Single Judges have held that in case of such an error the same can be corrected even when decree is executed and fully satisfied and though the court may be functus officio with respect to execution of decree but not with respect to its powers of correction. Learned Single Judges have held that on account of mistake of the Court a party should not suffer and such a mistake is liable to be corrected u/s 152 of C.P.C.

In the case of A. P. Chettiar, learned Single Judge of Madras High Court has held that once the decree is fully satisfied the same cannot be amended since the decree becomes extinct and dead so far as the Court is concerned. In the said case the Court was dealing with the application for amendment of the decree. The application for amendment of the decree was made by the plaintiff to incorporate the grant of interest at the rate of 9% per annum for certain period and thereafter at the rate of 6% per annum and also the costs. This application was allowed by the Court, although the decree was satisfied. In this factual background learned Single Judge of Madras High Court held that it was not permissible for the trial Court to permit amendment of the decree in purported exercise of the powers under Sections 151 and 152 of C.P.C.

The ratio laid down in two judgments of the Allahabad High Court relied upon by the learned Advocate Mr. Usgaonkar is squarely applicable to the present case. Even if the application is allowed, third party rights are not going to be adversely affected. The error in the judgment is apparent and the learned Counsel for the respondent who was asked as to whether the respondent disputes the factual position, stated that he had no instructions from the respondent.

Therefore, in my considered opinion the inadvertent error in paragraph 3 of the judgment dated 17.12.2004 deserves to be corrected. The Judgment in the case of A.P. Chettiar does not advance the case of the respondent inasmuch as in that case after the decree was satisfied the plaintiff sought to amend the decree by claiming additional reliefs by resorting to Sections 151 and 152 of C.P.C which exercise was patently unsustainable in law. In the present case the applicant is not seeking any additional relief which was not granted by this Court but

only seeking correction of a patent error which has crept in paragraph 3 of the Judgment.

For the reasons stated aforesaid, the application is allowed. Paragraph 3 of the Judgment dated 17.12.2004 passed in Second Appeal Nos. 8/1997 with 9/1997 stands corrected as under:-

The plaintiff is the owner of the property known as " Maddem" having Land registration NO. 29031, Matriz NO. 2290 with a house bearing Village Panchayat NO. 114/5 situated in Umtawaddo of Calangute Village.

The Judgment dated 17.12.2004 be corrected accordingly, the application stands disposed of in aforesaid terms, with no order as to costs.