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Haji Ebrahim Haji Jamal Noor Mohd. and Co. Vs. V. Balakrishnan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 367 of 1958
Judge
Reported inAIR1961Ori18; 26(1960)CLT153
ActsCode of Civil Procedure (CPC) , 1908 - Sections 152
AppellantHaji Ebrahim Haji Jamal Noor Mohd. and Co.
RespondentV. Balakrishnan and anr.
Appellant AdvocateM.S. Rao, Adv.
Respondent AdvocateJ.M. Mittra, Adv.
DispositionRevision allowed
Cases Referred and Hara Sundar v. Lahabara Singh
Excerpt:
.....not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india..........or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any tune be corrected by the court either of its own motion or on the application of any of the parties'. indeed, the court, even without notice to the plaintiffs, had jurisdiction to rectify the previous order or decree and reduce the costs provided it was a case of pure clerical or arithmetical mistake or accidental slip or omission. the question, which remains to be examined, is whether this reduction was on account of a pure accidental slip or arithmetical or clerical' mistake. the judgment of the court below itself shows that he had to consider several rules of the g. r. and c, o. and he had to discuss several decisions also in order to justify the.....
Judgment:
ORDER

S.P. Mohapatra, J.

1. This is a civil revision presented by the plaintiffs against an , order dated 19-8-1958 of Sri J. N. Patnaik, Munsif of Cuttack, arising in the following circumstances:

The plaintiff-petitioners filed a Small Cause Court suit No. 670 of 1954 which was eventually decreed on contest on 24-7-1956 with costs and future interest at the rate of six per cent per annum, from the date of judgment till realisation. Accordingly on that very day, that is, on 24-7-1956, a decree was drawn up and signed by the court awarding costs of Rs. 516-11-0. Long after the date of the decree on 18-4-1957 the Sheristadar of the Office put up a note reducing the costs to Rs. 43-13-0 only and the Court, by its order dated 22-4-1957, accepted the office-note and allowed reduction. This order of rectification was without notice to the plaintiffs or to their lawyer. A few days after the decree was amended and the costs were reduced, the present petitioners filed a review petition before the same Court challenging the order of rectification as without jurisdiction. The plaintiffs having failed before the Munsif, the present Civil revision has been filed.

2. It appears, the court rectified the decree and reduced the costs exercising his powers under the provisions of Section 152 of the Civil Procedure Code, which runs as follows:-

'152. Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any tune be corrected by the Court either of its own motion or on the application of any of the parties'.

Indeed, the Court, even without notice to the plaintiffs, had jurisdiction to rectify the previous order or decree and reduce the costs provided it was a case of pure clerical or arithmetical mistake or accidental slip or omission. The question, which remains to be examined, is whether this reduction was on account of a pure accidental slip or arithmetical or clerical' mistake. The judgment of the court below itself shows that he had to consider several rules of the G. R. and C, O. and he had to discuss several decisions also in order to justify the reduction.

The Court below had made reference to Rule 1, Chapter IV, Part 1 of High Courts G. R. and C. O. and also to Rules I9(A), Part V, Chapter 1 and to the provisions appearing at page 134 under the heading 'Fees of Revenue agents', that is, Rule 32. He had also made a reference to two decisions reported in Kameshwar Singh v. Nebilal Mistri, AIR 1945 Pat 184 and Hara Sundar v. Lahabara Singh, 67 Ind Cas 277 : (AIR 1923 Cal 315 (1)). Reference to these rules and decisions are not on the position that he could excercise jurisdiction under Section 152, C. P. C., but to discuss the question whether the plaintiffs are entitled to the costs as allowed in the previous decree or not he has given other sufficient reasons in support of his decision contained in the said order which is being impugned before me.

These make it absolutely clear that it cannot be taken to be a case of pure accidental slip or arithmetical error, but it requires thorough investigation of several rules. Notice to the plaintiffs, therefore, was essential and the case is not covered by any provisions of Section 152, C. P. C. As such, I feel convinced to observe that the order of rectification dated 22-4-1957 is without jurisdiction. It may be noted if the defendants were aggrieved by the decree which was passed and signed by the Court that the plaintiffs were not entitled to so much of costs under the rules, they had remedies under the provisions of Order 47, C. P. C. But the defendants chose not to take any such steps and, as it appears clear, il was on the basis of the office-note after a long lapse of time when the defendants had lost their remedies that the Court passed the order of rectification reducing the costs which, according to me, is without jurisdiction.

3. The Civil Revision, therefore, is allowed. The order dated 32-4-1957 is vacated. The parties are to bear their own costs throughout the proceedings arising out of the plaintiffs' petition under Order 47, C. P. C. The decree passed on 24-7-1956 must stand, subject to the following observations :

4. It may be noted that the judgment in the aforesaid S. C. C. Suit made a provision for future interest at the rate of 6 (six) per cent per annum from the date of judgment till realisation. This indeed wag not incorporated in the decree which is purely a case of accidental slip and this could andshould have been incorporated in the decree at any time under the provisions of Section 152, C. P. C. This has been rightly included by the Court below by virtue of his order dated 19-8-1958.


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