Taherbal Mulla Abbas Bhai vs Buhari Sons Private Limited

Thanikkachalam, J.—The plaintiff is the petitioner herein. This revision is directed against the order passed in I.A. No. 19615 of 1984 in

O.S. No. 150 of 1978. The plaintiff filed O.S. No. 150 of 1978 to realise the amount of Rs. 27,552 due on a hundi executed by the defendant. In

the plaint, the rate of interest was stated as 36%. The defendant entered appearance and filed his written statement in July, 1978. The defendant

submitted to a decree on 23.4.1980. Accordingly, a consent decree was passed on 23.4.1980. Thereafter, the defendant filed I.A. No. 19615 of

1984 in the month of October, 1984, under Sections 151 and 152, C.P.C. with a prayer to modify the decree dated 23.4.1980 by stating the rate

of interest as 6% per annum instead of 36% per annum as stated in the decree. The plaintiff filed a counter stating that this petition is barred by

limitation as per Article 137 of the Limitation Act, 1963. It was further submitted that inasmuch as the defendant submitted to a decree, it is not

open to him to file the present petition to modify the decree passed by the trial court. The lower court was of the opinion that the application filed

for modification is in time and the defendant is entitled to ask for interest at the rate of 6% since that was the contractual rate. Accordingly, I.A.

No. 19615 of 1984 was allowed. It is against that order, the present revision is preferred by the plaintiff.

The learned Counsel for the petitioner submitted that the lower court is not correct in allowing the application filed by the defendant to modify

the decree, under Sections 151 and 152, C.P.C. According to the learned Counsel since the defendant submitted to the decree, it is not open to

him to question the decree at a later stage. According to the learned Counsel, the application filed by the defendant is misconceived. It was further

pointed out that the application, under Sections 151 and 152, C.P.C. can be filed only if there is any clerical error or arithmetical mistake in the

judgment, but in the present case, there was no such error or mistake in the judgment passed by the lower court. The learned Counsel further

relied upon a decision of this Court rendered in the case, of Nafeesa Bai Mulla Abbas Bai v. Buhari Sons Private Limited, Madras C.R.P. No.

591 of 1990, dated 1.2.1995, in order to support his contention that the application filed by the defendant is misconceived. Accordingly, it was

pleaded that the order passed by the lower court is liable to be set aside.

On the other hand, the learned Counsel appearing for the defendant submitted that in so far as the application filed u/s 151 and 152, C.P.C. is

concerned, there is no question of limitation. It was further submitted that the contractual rate of interest is 6% per annum and the counsel for the

defendant submitted to the decree without noting the rate of interest as stated in the plaint. The learned Counsel further submitted that as against the

order passed by this Court in C.R.P. No. 591 of 1990, dated 1.2.1995, SLP was admitted by the Supreme Court. The learned Counsel for the

respondent relied upon two decisions of this Court rendered in the case Iqbal Bhai Mulla Abbas Bhai v. Buhari Sons (P) Limited, Madras C.R.P.

No. 2292 of 1986 dated 14.7.1993, and in the case, Saifudeen Bhai Mulla Abbas Bhai v. Buhari Sons (P) Limited C.R.P. No. 2119 of 1986,

dated 24.9.1993, in order to support his contention that the lower court was correct in allowing the application filed by the defendant.

I have heard the rival submissions. The fact remains that O.S. No. 150 of 1978 was filed to recover the amount due on a hundi. In the suit, the

defendant entered appearance and filed the written statement in July, 1978. The defendant submitted to the decree on 23,4.1980. In the decree,

interest was granted at the rate of 36% per annum. The defendant filed I.A. No. 19615 of 1984, under Sections 151 and 152, C.P.C. to modify

the decree by stating that the rate of interest is 6% instead of 36% per annum.

The point for consideration is whether the defendant is entitled to file I.A. No. 19615 of 1984, under Sections 151 and 152, C.P.C, to modify

the decree to change the rate of interest at 6% per annum instead of 36% per annum, granted by the lower court.

It is no doubt true that the petition under Sections 151 and 152, C.P.C. can be filed only if there is any clerical mistake or arithmetical error in

the judgment. In the present case, the petition was filed to modify the decree. In the plaint in para 4 the rate of interest as per the contract was

stated to be 6% per annum. But, in the prayer portion of the plaint, the rate of interest is shown as 36% per annum. The defendant, inadvertently

submitted to the decree without pointing out the mistake. Hence, in the judgment and decree, the rate of interest is stated as 36% per annum.

Therefore, a clerical mistake crept in both the judgment and the decree, in view of what is stated in the prayer portion of the plaint. Hence, for

correcting the said mistake the petition filed under Sections 151 and 152, CPC is perfectly justified and maintainable.

Insofar as the limitation is concerned, the lower court considering the provision under Article 137 of the Limitation Act, 1963, held that the

petition for modification was filed, beyond the period of limitation of three years, but for filing the application, under Sections 151 and 152, C.P.C,

there is no limitation as can be seen from the decision in L. Janakirama Iyer and Others Vs. P.M. Nilakanta Iyer and Others, . The Supreme Court

held that, ""there can be no doubt that the decretal order drawn in the High Court through error introduced the words, ''mesne profits'' and such

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. In Samarendra Nath Sinha and Another Vs. Krishna Kumar Nag, , the Supreme Court further held that, ""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.

Similarly, while considering the provisions of Sections 151 and 152 of the CPC in the case of Kannappan Vs. Rajeswari Ammal and another, ,

it was held that ""the power under Sections 151 and 152, C.P.C. to rectify the errors arising from the accidental slip can be exercised at any stage,

even after the decree had been confirmed by the High Court. In spite of the trial court decree having merged with the decree of the High Court, the

Supreme Court held that the trial court has jurisdiction under Sections 151 and 152, C.P.C. to rectify the errors and amend the same.

A Division Bench of this Court in Sigappiachi and Others Vs. M.A.P.A. Palaniappa Chettiar, , while considering the provision of Section 34,

C.P.C., it was held that ""awarding of interest in a decree at the rate higher than allowed by Section 34 of the Code is an error apparent on the face

of record.

It was brought to the notice of this Court that as against the order in C.R.P. No. 591 of 1990, dated 1.2.1995, a SLP was admitted by the

Supreme court in SLP No. 13973 of 1995. It was also submitted that there were four hundies and in all these hundies, the borrower is common

and the persons who lent the amounts are persons of one family. In C.R.P. Nos. 2292 of 1986 and 2119 of 1986 dated 14.7.1993 and

24.9.1993 respectively in the case of other two hundis executed by the petitioners herein, this Court held that the application filed for modification,

under Sections 151 and 152, C.P.C. are maintainable and accordingly upheld the order passed by the lower court in modifying the decree by

changing the rate of interest from 36% to 6% per annum as per the contractual rate. In the present case as already stated, in the plaint in

paragraph-4, the plaintiff has stated the contractual rate of interest was 6%, though in the prayer portion it was wrongly stated as 36% per annum.

Thus on considering the facts arising in this case, in the light of the judicial pronouncements cited supra, I hold that there is no infirmity in the

order passed by the lower court in allowing the application in I.A. No. 19615 of 1984. Accordingly, this revision is dismissed. No costs.