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Judgment
M. Venugopal, J.—The civil revision petitioner is the second defendant in O.S.No. 55 of 1988 on the file of the Sub Court, Sankagiri. In the
said suit filed by the first respondent/Plaintiff Bank for hypothecation directing the defendants 1 to 3 to pay a sum of Rs. 4,79,259/- with future
interest at 13.5% per annum from the date of suit till date of payment towards the Term Loan, with a charge over the property described in the
schedule and directing the sale of the hypothecated property in case of default of payment to be sold and the sale proceeds be applied for
realisation of the decretal amount and directing the defendants to pay a sum of Rs. 1,99,907.05/- with future interest at 15% p.a. from the date of
suit till date of payment towards cash credit loan with a charge over the property described in the schedule and in case of default of payment,
directing the hypothecated property in movables described in the schedule to be sold and the sale proceeds be applied for realisation of the
decretal amount due under the cash credit loan amount and for cost, decree was passed by the trial Court on 26.09.1991.
An interlocutory application was filed by the first Respondent/Plaintiff Bank before the learned sub Judge, Sankagiri wherein it was inter alia
averred that the suit was filed for recovery of money and create a charge over the hypothecated movables and there was no immovable collateral
security obtained by the Bank at the time of advance of money to the defendants and there was also no prayer in the plaint to pass a preliminary
mortgage decree on the immovable properties and that inadvertently a mistake crept-in while drafting the decree and that the decree was drafted
as a preliminary mortgage decree and directed the decree holder to apply for final decree. In short, the first respondent/Plaintiff Bank in the
interlocutory application has prayed for treating the decree as simple money decree by passing orders Suo Motto u/s 152 of C.P.C. The said
interlocutory application was received by the trial Court on 04.03.1997 and the said application in unnumbered stage was heard by the Court
below on 15.09.1997 and orders were passed as follows:
Heard S.A. Shanmugam, Perused C.P.C. Commentaries 9th edition by W.W. Chitaley and V.B. Bakhale Volume II Pages 830, 838, 842,
Amend the decree as Money decree.
Nearly after 5 years, 5 months and 7 days, the interlocutory application for amending the decree Suo Motto by the trial Court was filed u/s 152
of C.P.C. by the first Respondent/Plaintiff Bank.
It is the contention of the learned Counsel for the Revision Petitioner/Second Defendant that the order passed by the learned Subordinate Judge,
Sankagiri on 15.09.1997 in unnumbered application without ordering notice to the other side is illegal in the eye of law.
In this connection, it is pertinent to refer to Rule 32 of the Civil Rules of Practice, which enjoins as follows:
Proof of facts by affidavit: Any fact required to be proved upon an interlocutory proceeding shall, unless otherwise provided by these rules,
ordered by the Court, be proved by affidavit but the judge may, in any case, direct evidence to be given orally; and thereupon the evidence shall
be recorded and exhibits marked, in the same manner as in a suit and lists of the witnesses and exhibit shall be prepared and annexed to the
judgment.
In the decision reported in U.P.S.R.T.C. Vs. Imtiaz Hussain, , it is observed by the Honourable Supreme Court as follows:
A. Labour Law - U.P. Industrial Disputes Act, 1947 (28 of 1947) - Section 6(6) - Provision in, enabling to correct any clerical or arithmetical
mistakes in the award, or errors arising therein from any accidental slip or omission - Scope - Held, it is similar to Section 152 CPC - Restating the
basis of and the limitations and principles applicable to Section 152 CPC, held, they are applicable to Section 6(6) of the U. P. Industrial Disputes
Act as well - In the present case, employer SRT Corporation removing the conductor from service - Labour Court directing reinstatement but
holding that as the said conductor''s name was not in the list of permanent conductors'' list, he was not entitled to back wages - Subsequently, on
an application filed by the said conductor u/s 6(6) of the U.P. Act, Labour Court passing certain directions about payment of salary, allowances,
etc. from the date of raising of the Industrial dispute till reinstatement with continuity of service - Such modification of the award purportedly u/s
6(6), held, not justified - Civil Procedure Code, 1908, Section 152 -Maxims - ""actus curiae neminem gravabit"", ""lex non cogit ad impossibilia.
B. Labour Law - U.P. Industrial Disputes Act, 1947 (28 of 1947) - Section 6(6) - Analogous provisions - Held, it is similar to Section 152 CPC
- Civil Procedure Code, 1908, Section 152 - Statute Law - Pari materia provisions.
In the decision reported in Dwaraka Das Vs. State of Madhya Pradesh and Another, it is held as follows:
A. Civil Procedure Code, 1908 - Sections 152 and 151 -Correction of mistakes or errors in judgments, orders or decrees - Correction should be
of the mistake or omission which is accidental and non-intentional and does not go to the merits of the case - Provision cannot be invoked to
modify, alter or add to the terms of the original judgment, order or decree so as to in effect pass an effective judicial order - Liberal use of Sections
151 and 152, CPC by lower Courts to alter original judgment decree or order deprecated - On facts, trial Court in its decree having not granted
interest pendente lite despite prayer made in that regard, held, erred in allowing an application u/s 152 and by correction awarding interest
pendente lite -Interest.
In the decision reported in Thomas Vs. Kunjamma, , it is held as follows:
Civil P.C. (5 of 1908), Order 6, Rule 17, Section 152 -Amendment of plaint and decree - Application for -Injunction Suit - Confirmation of
decree in first appeal and second appeal on merit - Any correction of plaint and decree to correct extent of plaint schedule property and survey
number - Has to be made by second appellate Court only - Plea that appeal and second appeal from trial Court judgment were only dismissed
confirming decree and therefore trial Court had jurisdiction to allow such amendment - Is not tenable.
In the decision reported in M/s. Plasto Pack, Mumbai and Another Vs. Ratnakar Bank Ltd., , it is held as follows:
A. Civil Procedure Code, 1908 - Order 8 Rule 10 and Order 20 Rule 10 - Suit for recovery of dues - Decree passed under Order 8 Rule 10
granting relief set out in the plaint ""as it was"" - Held, such prayers, as were not granted by the decree, would be deemed to have been refused and
to that extent the suit shall be deemed to have been dismissed. (para 12)
B. Civil Procedure Code, 1908 - Section 152 and Order 9 Rule 13, 14 - Amendment of decree - Power of, cannot be exercised so as to add to
or subtract from any relief earlier granted - Some of the reliefs sought by the plaintiff not granted by the decree and as such the same were deemed
to have been refused and to that extent suit was deemed to have been dismissed - After a long lapse of time (more than 2 years and 8 months), on
a mere motion made by plaintiff, held, court cannot substitute almost a new decree in place of the old one by granting such reliefs as were not
granted earlier and that too without giving notice to defendant (Para 12)
It is brought to the notice of this Court that the first defendant and the second defendant in the suit filed C.M.A.No. 736 of 1994 as appellants
before this Court as against the orders passed in I.A.No. 1231 of 1991 to set aside the exparte decree dated 26.09.1991, which was dismissed
by the Court below on 10.03.2003 and the C.M.A.No. 736 of 1994 was dismissed by this Court on 16.04.1996. It is significant to point out that
in C.M.A.No. 736 of 1994 judgment dated 16.04.1996, this Court came to the conclusion that the conduct of the appellants clearly shows that
they are least interested in disposing of the matter and having suffered exparte decree and they are trying to drag on proceedings as much as
possible. I do not think, the appellants are entitled to any indulgence from this Court, since the conditional order has not been complied with, I am
of the view that the appellants cannot be permitted to argue the matter on merits. Perusal of the trial Court order would clearly show that the lower
Court has considered the entire aspect and dismissed the application to set aside the exparte decree dated 26.09.1991. There is no infirmity in the
order of the trial Court and the appeal is dismissed. However, there is no order as to costs. In the said C.M.A. No. 736 of 1994, the
plaintiff/Bank figured as the respondent before the Honourable High Court.
According to the learned Counsel for the first respondent Bank that a sum of Rs. 1,50,000/- was paid on 10.01.1996 after the sale of
hypothecated machinery as per the decree and this amount is only a part payment to the Bank and the balance is to be paid by the defendants.
However, this fact is not disputed by the Revision Petitioner.
As far as the present case is concerned, this Court is of the considered view that when the first respondent Bank has filed an unnumbered I.A.
in O.S.No. 55 of 1988 before the trial Court praying to amend the decree as simple money decree exercising its Suo Motto powers u/s 152 of
C.P.C., then the trial Court ought to have numbered the said application and ordered notice to the other side in as much as it cannot pass unilateral
orders, notwithstanding its powers u/s 152 C.P.C. either of its own motion or on the application of any parties to amend the Judgments, Decrees
or Orders as the case may be.
It cannot be gain said that there is no limitation period for tiling an application u/s 152 C.P.C. as per the decision reported in (2004) 1 AN WR
523 (AP). Further more, the matters decided judicially by decree cannot be reopened u/s 152 C.P.C as per the decision reported in (2005) 1
ALT 578 (DB) (AP). It is relevant to refer that the exercise of power u/s 152 contemplates the correction of mistakes by Court of its ministerial
actions and does not contemplate of passing effective judicial orders after the Judgment, Decree or Order and that the corrections visualised are
only accidental omissions or mistakes in the considered opinion of this Court.
Admittedly in O.S.No. 55 of 1988, an exparte decree was passed on 26.09.1991. Even C.M.A.No. 736 of 1994 filed by the
Appellants/Defendants 1 and 2 in the suit was dismissed as early as on 16.04.1996. When that be the factual situation, when the first respondent
Bank filed the unnumbered I.A. praying for treating the decree already passed as money decree and amending the same u/s 152 C.P.C. the
principles of natural justice require that an opportunity should have been given to the other side to file their counter if any and in fact, the trial Court
ought to have numbered the said application and disposed of the same on merits. However, in the present case, this was not done by the trial
Court and the trial Court has simply perused the C.P.C. Commentaries IX Edition by W.W. Chitaley and V.B. Bakhale Volume II Pages 830,
838, 842 and ordered for the amendment of the decree as money decree unilaterally. As per Rule 32 of the Civil Rules of Practice whereby the
averments/facts mentioned in the affidavit can be proved by any party in an interlocutory proceeding either by an affidavit or by adducing direct
evidence orally and by marking of documents as exhibits. In as much as the trial Court has passed orders on 13.09.1997, ordering for amending
the decree as money decree in the unnumbered application in O.S.No. 55 of 1988 on the file of the learned Subordinate Judge, Sankagiri, this
Court sitting in Revision interferes with the order of the lower Court, since it has failed to exercise its jurisdiction so vested in law and therefore,
allows the Civil Revision Petition to prevent aberration of justice and to promote substantial cause of justice. Resultantly, the order passed by the
trial Court in the unnumbered application dated 15.09.1997 is hereby set aside.
The learned subordinate Judge, Sankagiri is directed to restore the said application and directed to assign a number to the said application and
order notice to the parties and after affording opportunity to both the parties to file counter and to adduce oral or documentary evidence, is
directed to dispose of the same in accordance with law within a period of two months from the date of receipt of a copy of this order. However,
there is no order as to costs. Since the main matter is disposed of, the connected CM.P. is closed.