M. Muthukrishnan vs Ethirajulu and Others

N. Paul Vasanthakumar, J.—This revision petition is filed u/s 115 of the Code of Civil Procedure, challenging the order in I.A. No. 882 of

2003 in O.S. No. 227 of 1981 dated 17.7.2006, rejecting the review application seeking review of the final decree passed in I.A. No. 752 of

1988 dated 1.3.1990.

The first respondent herein filed the suit for partition and after contest, preliminary decree was passed on 18.9.1981 ordering to divide the 2nd

and 4th schedule properties into three equal shares and allotting one each shares to the plaintiff/first respondent herein, 1st defendant''s heirs viz.,

defendants 7 to 9/respondents 3 to 5 herein and 4th defendant/revision petitioner herein. The first respondent filed appeal against the said

preliminary decree in A.S. No. 48 of 1982 before the Sub Court, Srivilliputhur and the same was also dismissed along with cross objection. After

dismissal of the first appeal, petitioner herein and others filed petition for final decree of partition. Accordingly final decree was passed on 1.3.1990

in I.A. No. 752 of 1988.

According to the petitioner, the first respondent/plaintiff did not file any petition to pass final decree. In the said final decree, 2nd and 4th

schedule properties were divided into three equal shares, wherein the plaintiff, first defendant''s heirs viz., defendants 7 to 9 and 4th defendant

were allotted one share each. According to the petitioner, 1/3rd share belongs to the petitioner, who is 4th defendant in the suit, was not allotted in

the 2nd and 4th schedule properties. Hence he filed a petition to amend the final decree passed on 1.3.1990 in I.A. No. 752 of 1988 by filing I.A.

No. 882 of 2003.

The said application was opposed by the respondents stating that there is no clerical or arithmatical error in the final decree passed on 1.3.1990

and the petitioner, if aggrieved ought to have filed appeal against the final decree order and no amendment can be ordered in the final decree.

According to the respondents, even if there is mistake, since the application was filed beyond the period of 12 years, i.e., after expiry of the period

for execution of the decree, the decree cannot be now executed. Thus, it was pleaded that the petition was affected by latches, acquiesance and

waiver.

The Court below held that the non-allotment of share to the petitioner in final decree cannot be treated as clerical or arithmatical error and if the

petitioner is really affected by the final decree, he ought to have preferred an appeal against the final decree and in the absence of such specification

in the final decree, the amendment sought for after a period of more than 12 years cannot be countenanced. The Court below also ordered that the

final decree was passed on 1.3.1990 and the present petition for amendment of the decree was presented on 30.3.2003 and therefore the petition

filed is barred by the law of limitation, dismissed the said application seeking amendment of the decree.

The learned Counsel for the revision petitioner/4th defendant argued that the first respondent herein/plaintiff, having filed the suit against the

petitioner and respondents 2 to 5 for partition and separate possession of 1/3rd share, which was decreed on 18.9.1981 and confirmed in A.S.

No. 48 of 1982 by the learned Sub Judge, Srivilliputhur; and the respondents 3 to 5 herein having filed final decree application to allot their

respective shares, pursuant to which an Advocate Commissioner was appointed, who divided the 2nd and 4th items of properties and allotted the

respective shares to the petitioner and respondents herein based on which the Court below passed final decree on 1.3.1990; and while drafting the

final decree the Court below omitted to mention the share allotted to the revision petitioner/4th defendant, the application filed by the petitioner to

amend the final decree is maintainable. According to the learned Counsel, the execution petition having been filed in the year 2003 and the same

having been returned pointing out that no specific share was allotted, the mistake in the decree was noted by the counsel and immediately the

application for amendment was filed. The learned Counsel also submitted that since the petitioner''s share was not rejected in the final decree

proceedings, he need not file any appeal against the said final decree order and the omission to mention the share in the final decree can always be

corrected, as it is the mistake committed by the Court and there is no limitation for making such correction. The learned Counsel also submitted

that the Court below has committed error in not ordering amendment on the plea of limitation and the same is to be set aside. In support of his

contentions, the learned Counsel cited certain decisions.

The learned Counsel appearing for the first respondent/plaintiff as well as respondents 3 to 5/defendants 7 to 9 on the other hand submitted that

the non-mentioning of the share of the petitioner in the final decree is not an error, but it is denial of his right over the suit properties. As per Article

136 of the Limitation Act, even if the revision petitioner has got a decree in his favour, the same can be executed only within 12 years, from the

date of the decree. As the petitioner has filed the execution petition after 12 years, the said application itself is barred by limitation and therefore the

petitioner cannot pray for amendment of the decree as he has lost his rights to execute the decree. According to the learned Counsel, if the

amendment is permitted at this stage, it would be an act which cannot be directly allowed to be done, would be indirectly permitted. The learned

Counsel also cited judgments in support of his contentions.

The point for consideration in this revision petition is as to whether the revision petitioner is entitled to pray for amending the decree, which was

passed against his interest, and can seek amendment of the decree after the period of limitation to execute the decree is over.

In the preliminary decree, the revision petitioner, who was 4th defendant, was given 1/3rd share, which was also confirmed in the appeal in A.S.

No. 48 of 1982. The final decree should be in consonance with the preliminary decree. The petitioner states that the non-mentioning of his share in

the final decree is an omission and if the said decree is allowed to stand, it would be inconsistent with the preliminary decree. If it is a mistake or

omission, Section 152 CPC empowers the Court to amend the decree and the same can be corrected by the Court either on its own motion or on

the application of any of the parties to the suit at any time. Section 152 CPC reads as follows:

Amendment of judgments, decrees or orders.- Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from

any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.

The period of limitation relied on by the respondents is only for execution of the decree. Once the petitioner establishes the fact, without filing

review or appeal, amendment can be sought for u/s 152 CPC and the same can be corrected at any time, which means even beyond 12 years.

(a) The Supreme Court in the decision reported in Samarendra Nath Sinha and Another Vs. Krishna Kumar Nag, considered the power of

correcting the decrees in tune with the judgment. In paragraph 11 it is held as follows:

Now, it is well settled that there is an inherent power in the court which passed the judgment to correct a clerical mistake or an error arising

from an accidental slip or omission and to vary its judgment so as to give effect to its meaning and intention.

Every court"" said Bowen L.J. In Mellor v. Swire (1885) 30 Ch.D. 239, ""has inherent power over its own records so long as those records are

within its power and that it can set right any mistake in them. An order even when passed and entered may be amended by the Court so as to

carry out its intention and express the meaning of the court when the order was made.

In L. Janakirama Iyer and Others Vs. P.M. Nilakanta Iyer and Others, , the decree as drawn up in the High Court had used the words ""mesne

profits"" instead of ""net profits"". In fact the use of the words ""mesne profits"" came to be made probably because while narrating the facts, these

words were inadvertently used in the judgment. This Court held that the use of the words ""mesne profits"" in the context was obviously the result of

inadvertence in view of the fact that the decree of the Trial Court had specifically used the words ""net profits"" and therefore the decretal order

drawn up in the High Court through mistake could be corrected under Sections 151 and 152 of the Code even after the High Court had granted

certificate and appeals were admitted in this Court before the date of the correction. It is true that under O.20, R.3 of the Code once a judgment is

signed by the Judge it cannot be altered or added to but the rule expressly provides that a correction can be made u/s 152. The Rule does not also

affect the court''s inherent power u/s 151. u/s 152, clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from

any accidental slip or omission may at any time be corrected by the court either on its own motion or on an application by any of the parties. It is

thus manifest that errors arising from an accidental slip can be corrected subsequently not only in a decree drawn up by a ministerial officer of the

court but even in a judgment pronounced and signed by the Court.

(b) In 2003 (1) CLJ 601 (Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan and Ors.), the scope of correction of judgment and decree u/s 152 CPC

was considered by the Honourable Supreme Court. In paragraph 14 the Supreme Court held thus,

... the successful party has no other option but to have recourse of Section 152 of CPC which provides for clerical or arithmetical mistakes in

judgments, decrees or orders or errors arising therein from any accidental slip or omission being corrected at any time by the Court either on its

own motion or on the application of any of the parties. A reading of the judgment of the High Court shows that in its opinion the plaintiffs were

found entitled to succeed in the suit. There is an accidental slip or omission in manifesting the intention of the Court by couching the reliefs to which

the plaintiffs were entitled in the event of their succeeding in the suit. Section 152 enables the Court to vary its judgment so as to give effect to its

meaning and intention. Power of the Court to amend its orders so as to carry out the intention and express the meaning of the Court at the time

when the order was made was upheld by Bowen L.J. In re Swire: Mellor v. Swire (1885) 30 Ch.D. 239, subject to the only limitation that the

amendment can be made without injustice or on terms which preclude injustice....

(c) In the decision reported in Pratibha Singh and Another Vs. Shanti Devi Prasad and Another, it is held that the successful party should not be

deprived of the fruits of the decree and resort can be made u/s 152 CPC.

(d) The Calcutta High Court in the decision reported in Janaki Nath Roy, Narendra Nath Roy and Co. Ltd. (in liquidation) Vs. Sambhu Nath

Mullick and Others, considered similar issue as to whether an amendment of decree in conformity with the judgment, even though made after lapse

of 15 years, can be made when there has been no unreasonable or unexplained delay and no third party interest has intervened. Paragraph 11 of

the said judgment reads as follows:

The most formidable objection that has been raised by Mr. Mukherjee is that there is undue delay in making the application and it would be

inequitable to allow such amendment at this stage. Mr. Banerjee on the other hand states that there is sufficient ground for delay in making the

application and there would be no inequity if the application is allowed. It will appear that though the decree was passed and signed in 1955, the

execution proceeding started in 1958. On 5.2.1958 the judgment-debtor company went into liquidation and the execution proceeding filed in 1958

was objected to by the liquidators which culminated in a second miscellaneous appeal being No. 57 of 1961. That was disposed of on 6.2.1963

directing the executing Court to allow amendment describing the company as being in liquidation. It appears that again on June 17, 1963 objection

was taken by the said liquidators that the decree was not in conformity with the judgment in so far as interest on costs concerned and the

miscellaneous case started thereon was disposed of on 19.4.1969 with the observation, as already stated, that the judgment being of the High

Court, the said Court should be moved for making correction if any. Further it was also to be remembered that the present petitioners, the

liquidators, were not the original judgment debtors. There is also no question of any inequity on the materials on record as the opposite parties

themselves put the decree in execution and no interest of any third party has intervened. In these circumstances, even though by all these processes

there has been lapse of 15 years, the delay is not really of the said period and also it cannot be said that there has been an un-explainable or

unreasonable delay in the matter for making the application for amendment of the decree taking into account the various proceedings referred to

above.

(e) In Manilal Gadiya Vs. Mangilal Kesarinath Sewak and Others, , this Court considered the drafting of decree in terms of the judgment and in

paragraph 5 held as follows:

...It is not necessary to declare the shares in the judgment rendered by the Court. But when it is proved from the pleadings and also from the

evidence that parties have equal shares the decree has to be drafted by declaring the shares of the parties also. This is a clear case where the Court

has failed to draft the decree in accordance with Order 20, Rule 15 and Form 21 as stated above. The decisions cited by Mr. Raja Masilamani,

learned Counsel for the respondents dealt with cases wherein the statutory rights of the parties have not been properly considered by the Court. In

such circumstances, it has been held that the decree cannot be amended u/s 151 and Section 152 C.P.C. but the remedy lies only by way of

appeal and review petition. As far as the present case is concerned, it is the duty of the court to draft the decree in accordance with Order 20,

Rule 15 C.P.C. and Form No. 21. The mistake committed by the Court has to be rectified only under Sections 151 and 152 C.P.C. No authority

has been cited contra to this proposition stated by me.

(f) The limitation plea cannot be put against the correction of decrees, as held in the judgment reported in Bawa Singh and Others Vs. Babu Singh

and Others, . In paragraph 3, it is held thus,

...Section 152 of the Code prescribes that clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any

accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties. Words

used in this section are ''at any time'', which show that the power of the Court to rectify clerical or arithmetical mistakes in the judgments or

decreesheets is not controlled by time factor. No doubt, it is true, that Article 137 prescribes a period of three years for making application under

any enactment but period of limitation prescribed by it will not apply to the applications u/s 152 of the Code. Section 29(2) of the Limitation Act

says that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by

the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of

determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4

- 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. From the

aforesaid section, it is evident that where any special law prescribes limitation that will be deemed to be substituted in the Schedule to the

Limitation Act. If Section 152 of the Code is read along with Section 29(2) of the Limitation Act, it would be clear that the words ''at any time''

would be deemed to have been substituted in place of the period prescribed in the Article. Therefore, in my view, an application can be filed for

rectifying any clerical or arithmetical mistakes in judgments and decrees at any time. In the aforesaid view, I am fortified by the observations of

Shyamal Bihari Mishra and Others Vs. Girish Narain Missir and Another, wherein it has been observed that Section 152 permits clerical or

arithmetical mistakes in judgments, decrees or orders to be corrected at any time. The phrase ''at any time'' used in Section 152 indicates that the

power of the Court to amend its decree under this section is uncontrolled by any time factor, but only by the scope of the section within which it

functions. It is further held that there is no limitation for an application to amend the decree. The decree may be amended under this section at any

time although the time for appealing from the decree has expired.

The decision cited by the learned Counsel for the respondents are with regard to the period of limitation for execution of the decree. There is

no dispute with regard to the said proposition. The said aspect has no relevance to the facts in this case.

Here in this case, the issue is as to whether the petition filed under Sections 152 and 153 of CPC to amend the decree in terms of the judgment

is maintainable or not. From the above referred judgments, I am of the view that the application filed by the petitioner to amend the final decree is

maintainable since correction or mistake in the decree can be rectified at any time. The said point was not considered by the Court below.

The amendment petition was dismissed only on the ground that no allotment of share was made to the revision petitioner in the final decree. It

is an undisputed fact that in the preliminary decree 1/3rd share was allotted to the petitioner/4th defendant. The Court below gave much

importance with regard to the expiry of 12 years period and the same cannot be a reason to reject the petition for amendment. The Court below is

bound to consider as to whether the final decree was passed in terms of the judgment and decree rendered in preliminary decree, which has

become final. To enable the lower court to arrive such a conclusion, I am of the view that the matter is to be remitted back to the lower Court.

In fine, the matter is remitted back to the Court below by setting aside the order dated 17.7.2006 in I.A. No. 882 of 2003. Necessary orders

are directed to be passed by the Court below on merits, without reference to the limitation for execution of the final decree, within a period of two

months from the date of receipt of copy of this order.

The revision petition is disposed of accordingly. No costs.