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S.M. Abdul Haq Sahib and Brothers Vs. Madura South India Corporation Pvt. Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal against Order No. 103 of 1971
Judge
Reported inAIR1973AP39
ActsCode of Civil Procedure (CPC), 1908 - Sections 151 to 153
AppellantS.M. Abdul Haq Sahib and Brothers
RespondentMadura South India Corporation Pvt. Ltd.
Appellant AdvocateK.B. Krishnamurthy and ;Ratna Sastry, Advs.
Respondent AdvocateP. Suryanarayana, Adv.
Excerpt:
.....151 and 153 of code of civil procedure, 1908 - application by 3rd defendant for setting aside ex parte decree under section 153 on ground that other defendants have been exonerated - section 153 can be invoked where court commits accidental error while deciding cases - ground pleaded by defendant outside purview of section 153 - proper course would be appeal or review. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action..........filed i.a.no. 1140/70 to condone the delay in his filing an application for setting aside the ex parte decree passed against him. along with it he filed an application to set aside the ex parte decree. he also filed i.a. no. 2618 of 1970 under sections 151 - 153. civil p.c. to amend the judgment and decree by deleting him as one of the judgment-debtors; in other words, to confine the decree only against the first defendant. the court below dismissed the two applications and rejected the unnumbered application to set aside the ex parte decree. c.r.p. no. 529/71 is against the dismissal of i.a.no. 2681/70 and c.m.a., no. 103 of 1971 is directed against the rejection of unnumbered application to set aside the ex parte decree. c.r.p.no. 530/71 is to revise the order of the lower court in.....
Judgment:

1. This Civil miscellaneous appeal and the two revision petitions can be conveniently disposed of under a common order as the parties are same and they arise out of identical set of circumstances.

2. The first defendant on 30th of December, 1964, purchased A.P.K. 7263, a Bedford Lorry from the third defendant, who is a dealer. The plaintiff was the financier and defendants 2, 3, and 4 were the guarantors. The financial ultimately brought O.S.No. 10/68 to recover the amount not only from the borrower but also from the guarantors. The other defendants contested the suit but not the third defendant. On conducting the trial and hearing the arguments of the parties, who participated in the proceedings, the court below passed a decree on 30th November, 1968 against defendants 1 and 3 and exonerated defendants 2 and 4.

3. The third defendant filed I.A.No. 1140/70 to condone the delay in his filing an application for setting aside the ex parte decree passed against him. Along with it he filed an application to set aside the ex parte decree. He also filed I.A. No. 2618 of 1970 under Sections 151 - 153. Civil P.C. to amend the judgment and decree by deleting him as one of the judgment-debtors; in other words, to confine the decree only against the first defendant. The court below dismissed the two applications and rejected the unnumbered application to set aside the ex parte decree. C.R.P. No. 529/71 is against the dismissal of I.A.No. 2681/70 and C.M.A., No. 103 of 1971 is directed against the rejection of unnumbered application to set aside the ex parte decree. C.R.P.No. 530/71 is to revise the order of the lower court in I.A.No. 1140/70 refusing to condone the delay in his filing the application for setting aside the ex parte decree.

4. It is seen that C.M.A.No. 103/71 and C.R.P.No. 530/71 go together. The unnumbered application for setting aside the ex-parte decree cannot be entertained unless and until the delay in filing it is condoned. The decree having been passed on 30th November, 1968 and the petition having been filed on 18.3.1970., as much as 15 months had elapsed before the third defendant sought to have the decree against him set aside. As we all know, time for filing such petitions is prescribed by the Indian Limitation Act as 30 days. But, that period of 30 days can be reckoned from the date on which the person who seeks to avoid the decree has knowledge of the passing of the decree. It need not necessarily be from the date of the decree itself. Now the question in the present case is whether the application was filed within 30 days from the date of the 3rd defendant's knowledge of the decree against him. By any stretch of imagination the question cannot be answered in his favour. There is large volume of evidence produced by the plaintiff-respondents showing that within a month of the passing of the decree he sent a registered notice, Ex. B-2, informing the judgment debtors of the passing of the decree and demanding payment. Exs. B-3 to B-6 of November, 1968 and January, March and April, 1969 respectively are the statements sent by the plaintiff showing the amounts due from the judgment-debtors and demanding payment. There is no denial of the fact that these statements and notices were received by the third defendant. Even on his own showing the third defendant know of the ex parte decree against him in September, 1969. That is what P.W. 1 states his evidence. But, then the case put forward for not filing the settings aside application immediately was that the third defendant-firm was in financial distress. Being in financial distress is no cause or justification for not putting an application for setting aside an ex parte decree within time. The lower court has dealt with all these considerations and evidence thereon with immaculate care and I have no reason at all to differ from its view. There is therefore, no sufficient cause made out by the third defendant for not filing the setting aside application within 30 days from the date of the decree or his knowledge of that decree. I.A.No. 1140 of 1970 was, therefore, rightly dismissed by the court below, C.R.P. No. 530/71 consequently fails.

5. Consequently the unnumbered application was also rightly rejected. So, C.M.A No. 103/71 is without any substance.

6. Then coming to the last matter, C.R.P.No. 529/71, it relates to the third defendant's application to amend the judgment and decree by exonerating him from the liability thereunder. Sri K.B.Krishnamurthy learned counsel for the petitioner strenuously endeavours to bring this application within the ambit of Sections 151 - 153, Civil P.C. which according to him have very wide amplitude. Learned counsel submits that while the other guarantors have been exonerated his client alone was mulcted with the liability under the decree for the simple reason that he remained ex parte. Such a decree in the submission of the learned counsel clearly and squarely comes within the ambit of accidental error.

7. I am unable to agree with this contention. It may be true that the lower court passed a decree against the third defendant also because he remained ex parte. It is also true that the other two guarantors were exonerated from the liability. From that it does not and need not necessarily follow that the third guarantor also should be exonerated. For ought the court knew at that time the third defendant was probably prepared to concede the decree against him. Be that as it may the court thought that the third defendant was not prepared to resist the plaintiff's claim against him, and therefore, passed a decree against him, though the suit was dismissed against the other guarantors. By any stretch of imagination this cannot be called an arithmetical or accidental slip or error. It is clearly the intention of the court to pass a decree against the third defendant. Such a decree and judgment can be set aside in an appeal or review, and can be corrected if at all only by such known method of law. To have such a judgment and decree corrected under Sections 151 and 153. Civil P.C. is wholly untenable. Rajamannar, C.J., delivering the judgment of the Division Bench consisting of himself and Somasundaram J. In Abdul Razack Sahib v. Abdul Hamid, : AIR1951Mad406 observed that sections 151 and 152, Civil P.C. cannot be invoked the substitution of the specific remedies of review and appeal.

8. Sri Krishnamurthy, however, places strong reliance on a decision of the Supreme Court in samarendra v. Krishna Kumar, : [1967]2SCR18 . I am afraid that this decision would rather support the view I have taken than rendering any assistance to his contention. Shelat, J., speaking for the court said that the court has inherent power to correct a clerical mistake or error in its judgment from an accidental slip or omission so as to give effect to its meaning and intention. If what is contained in the operative portion of the judgment is contrary to the meaning and intention of the Judgment then such a correction can be made. But, in the present case as I have already pointed out, the intention of the court to award a decree against the third defendant also is very manifest and there is no possibility of error in that respect.

9. Likewise, learned counsel refers me to a single Judge's decision of Gopalakrishnan Nair, J., in Narayana Reddy v. Venkatramanappa, : AIR1966AP329 where the learned Judge held that inexcusable errors in decrees must be corrected. It was a case where permanent injunction against Government was granted in respect of irrigation sources and irrigation channels though there was no such prayer. The learned judge thought that such an injunction was wholly untenable in law and should have been granted only by mistake or error and thus can be corrected by the amending and inherent power of the court. Obviously, such is not the case here. Since the third defendant did not seek to oppose the claim of the plaintiff the court below passed a decree against him. By no means it can be said that it is an inexcusable error. So these decisions are not of any help to the learned counsel's contention.

10. Clearly the proper remedy for the third defendant to have the judgment and decree corrected is only by way of appeal or review and not under the inherent and amending power of the court. The amendment petition is wholly misconceived. C.R.P. No. 529 of 1971 accordingly fails.

11. In the result, C.M.A. No. 103/71 and C.R.Ps. 529 and 530 of 1971 are dismissed, with costs, in C.R.P. No. 530 of 1971 alone. In the other two matters the parties will bear their own costs.

12. Ordered accordingly.


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