Mrs. Swarna Sarma and Others vs Uttam Chandra Medhi

C. Sanjeeva Row Nayudu, C.J.—This is an application filed under Sections 151 and 152 of the CPC for correction/amendment of the decree passed in First Appeal No. 34 of 1958 by this Court. The judgment and decree in that appeal was passed by two learned Judges of this Court, wherein they ordered that one-third of the property alone can be given to the Plaintiff in view of their judgment in Title Appeal No. 35 of 1957. Accordingly, the right and title of the Plaintiff in Title Suit No. 18 of 1955, from which apparently the appeal arose, were declared to the extent of one-third of the suit property. It was further held that the Plaintiff will get khas possession of the same on partition and proportionate cost of that suit.

Mr. Lahiri, the learned Counsel for the Petitioners contends that as mesne profits were awarded by the trial Court and were made the subject-matter of the appeal before this Court by the Defendant, their Lordships must have considered this matter and given in the judgment a decision as to the right of the Plaintiff in the proceedings to get mesne profits. The argument of Mr. Lahiri amounts to this that the learned Judges who disposed of the first appeal before them, did not address themselves to this issue and, therefore, did not give a finding and a decision thereon. If these are the premises, then, as already pointed out by us in an earlier order arising out of execution proceedings, the remedy that is open to the present Petitioners was either to question the judgment and decree of this Court in appeal by preferring an appeal to the Supreme Court or applying for a review of the judgment, if it was felt that some omission or error of law had been committed by the Court. No review application has been made but Mr. Lahiri points out that they have taken the matter in appeal to the Supreme Court and the appeal is pending. If that is so, then this error said to have been committed by a Bench of this Court certainly can be corrected by the Supreme Court if that Court is satisfied that there was such an error and omission to dispose of the appeal on one of the issues arising in the case.

It would be difficult to consider that the omission to dispose of an issue in appeal could be regarded as an accidental omission or a slip to bring the case within Section 152 of the Code of Civil Procedure, which is 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.

It is clear from the language of the section that the whole object of the section is to give a kind of quick and summary power to the Court to correct its own clerical or arithmetical mistakes arising from any accidental slip or omission. This section thus cannot be put into service lo replace the provisions to review a judgment.

It is clear from the order of the Bench of this Court that decided the case, that they had applied their mind to the merits of the case and they only chose to include in their operative portion of the order directions relating to the shares of the property, possession and costs. If it was the intention of the Court to award mesne profits as well or to confirm the decree for mesne profits given by the Court below, they would have said so expressly. We do realise that there has been no doubt an unfortunate omission to deal with the issue in the case, namely, whether the plaintiff was entitled to a decree for mesne profits or not and, if so, to what extent he is so entitled. In our opinion the omission to do this is certainly not an accidental omission or an arithmetical or clerical mistake.

Mr. Lahiri first relied on the case of L. Janakirama Iyer and Others Vs. P.M. Nilakanta Iyer and Others, The expression ''net profits'' was used in the judgment and decree in place of ''mesne profits''. The question arose whether the expression ''net profits'' could be corrected u/s 152. Code of Civil Procedure, by inserting the expression ''mesne profits''. The following observations of their Lordships of the Supreme Court in this case is apposite:

This part of the judgment does not contain the decision of the High Court at all. It is really concerned with the narration of the relevant facts and it purports to summaries the effect of the decree and nothing more. Besides, the use of the words ''mesne profits'' in the context is obviously the result of inadvertence because the decree of the trial Court had in the relevant clause used the words ''net profits'' and not ''mesne profits''. Thus, there can be no doubt that the decretal order drawn in the High Court through error introduced the words ''mesne profits'' and such an error could be corrected by the High Court under Sections 151 and 152 of the Code even though the appeals may have been admitted in this Court before the date of correction.

That was a case where the judgment dealt with the question of profits, held that the profits were allowable and allowed the profits, but through inadvertence in drafting the decree the words ''mesne profits'' were used instead of ''net profits''. This certainly can be corrected u/s 152, CPC and their Lordships held that section is the proper section under which the application could be made. The difference between that case and the one before us is that in that case a decision as to profits had already been made and the judgment awarded net profits and by some inadvertence the decree contained the words ''mesne profits'' and as that had to conform to the judgment, it was proper that this accidental omission or error should be corrected u/s 152, Code of Civil Procedure.

The next case relied on by Samarendra Nath Sinha and Another Vs. Krishna Kumar Nag, That was a case of a patent mistake committed in drafting the final decree. In that case the trial Court passed a preliminary decree for sale by mistake and realising the mistake afterwards passed a final decree for fore closure in due course. An application u/s 151, Code of Civil Procedure, was filed before the trial Court for setting aside the final decree and it was dismissed by the trial Court. An appeal was also filed before the High Court for setting aside the final decree passed by the trial Court and the High Court set aside the final decree passed by the trial Court and remanded the mailer, observing that the final decree should be in accordance with the preliminary decree and directing that the matter should be dealt with in accordance with law. Thereafter an appeal was preferred before the Supreme Court and their Lordships of the Supreme Court allowed the appeal agreeing with the judgment of the trial Court. The following observations of their Lordships of the Supreme Court will make the matter clear:

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.

They summaries and conclude as follows:

Under Section 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.

We are clearly of opinion that this is not a case covered by Section 152, Code of Civil Procedure. The only remedy, as we have already pointed out, is by a review application, which is apparently now barred, or by questioning the correctness of the judgment in an appeal, and apparently, as Mr. Lahiri points out that an appeal is pending before the Supreme Court, that would be the proper place where the Petitioners could take up the question for adjudication.

The Petition is thus dismissed. We however make no order as to costs.