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Puthan Veettil Sankaran Nair Vs. Poomulli Manakkal Moopil Sthanam Parameswaran Namboodiripad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 463 of 1966 and C.R.P. Nos. 83 and 90 of 1968
Judge
Reported inAIR1970Ker57
ActsCode of Civil Procedure (CPC) , 1908 - Sections 152 - Order 20, Rules 3, 6 and 7
AppellantPuthan Veettil Sankaran Nair
RespondentPoomulli Manakkal Moopil Sthanam Parameswaran Namboodiripad
Appellant Advocate M.C. Sen,; T.S. Venkiteswara Iyer,; R.C. Plappally a
Respondent Advocate T.S. Venkiteswara Iyer,; M.C. Sen and; R.C. Plappally
Cases ReferredMidnapore Zamindary Co. Ltd. v. Abdul Zalil
Excerpt:
civil - amendment - section 152 and order 20 rules 3, 6 and 7 of code of civil procedure, 1908 - whether after decree had been satisfied by withdrawal from court by plaintiff of amount deposited by defendant in court by sale held in execution learned munsif was justified in ordering amendment of decrees - power of correction under section 152 discretionary - such power can be exercised even after decree had been fully satisfied and recorded - court to ensure that none of its acts causes injury to any of suitors and to see its records are true - in present case decree not in conformity with judgments - innocent third parties not acquired rights under erroneous decrees - no principle of equity offended by amendments sought - held, in exercising jurisdiction under section 152 and orderings.....p. narayana pillai, j. 1. the 6th defendant in o. s. 474 of 1954 on the file of the munsif. alatur, is the appellant in s. a. 463 of 1966. the plaintiff in that suit is the petitioner in c. r p. 90 of 1968. he is also the plaintiff in another suit. o. s. 391 of 1951, on the file of the same court. c. r. p. 83 of 1968 is a revision petition filed by him from an order passed in o. s, 391 of 1951. the second appeal is from an order passed by the munsif adjourning the case for confirmation of the sale which was held in execution. the revision petitions relate to orders passed by him in the 2 suits amending the decrees in those cases.2. the facts necessary for the disposal of the appeal and the revision petitions are as follows: the plaint schedule properties in the 2 suits are identical and.....
Judgment:

P. Narayana Pillai, J.

1. The 6th defendant in O. S. 474 of 1954 on the file of the Munsif. Alatur, is the appellant in S. A. 463 of 1966. The plaintiff in that suit is the petitioner in C. R P. 90 of 1968. He is also the plaintiff in another suit. O. S. 391 of 1951, on the file of the same court. C. R. P. 83 of 1968 is a revision petition filed by him from an order passed in O. S, 391 of 1951. The Second Appeal is from an order passed by the Munsif adjourning the case for confirmation of the sale which was held in execution. The Revision Petitions relate to orders passed by him in the 2 suits amending the decrees in those cases.

2. The facts necessary for the disposal of the appeal and the revision petitions are as follows: The plaint schedule properties in the 2 suits are identical and they belong to the plaintiff. On the date of the 2 suits they were outstanding on lease with the Sub-tarwad of defendants 2 to 5 and 7. Defendants 3 to 5 and 7 are the children of the 2nd and 6th defendants, the 6th defendant being the husband of the 2nd defendant. During the pendency of the suits the 2nd defendant died. The two suits are for recovery of rent due in respect of the plaint properties for different periods. While O. S. 391 of 1951 is for recovery of rent for the year 1126 M. E. O. S. 474 of 1954 is for recovery of rent for the years 1129 and 1130 M. E. The 6th defendant was impleaded in the suits on the allegation that he was in possession of the properties on behalf of his wife and children. He contended that he was in possession of the properties as a sub-lessee of the 2nd defendant That contention was found against and a decree was passed in O. S. 391 of 1951 directing the defendants to pay on or before 15-2-1963 from and out of the sub-tarwad properties of defendants 3 to 5 and 7 an amount of Rs. 347-81 to the plaintiff. In O. S. 474 of 1954 a decree for the arrears of rent claimed in that suit was passed against all the defendants in that suit.

3. In O. S. 391 of 1951 when the plaintiff applied for execution the 6th defendant objected on the ground that he waa not in any manner liable for the decree amount. His objection was dismissed on 17-8-1965 with the observation that his remedy was to get the decree amended. In execution the plaintiff attached the crops standing on the properties. Then the 6th defendant on behalf of defendants 3 to 5 and 7 deposited the decree amount Thereafter he filed a claim petition. That was dismissed. Appeals filed by him from that order to the District Court. Palghat and this Court were also dismissed. On 15-9-1965 he filed an application for amendment of the decree in O. S. 391 of 1951. As the decree stood he was also liable 'for the decree amount in that case. According to him the decree was not in conformity with the judgment which had made it clear that he was not liable for the arrears of rent claimed in the suit and therefore the decree deserved to be amended excluding his liability for the amount decreed. The learned advocate appearing for the plaintiff submitted when the Second Appeal and the Revision Petitions were heard that the Munsif passed an order on 15-11-1965 allowing the plaintiff to withdraw from court the amount deposited by the 6th defendant in O. S. 391 of 1951, that pursuant to that order the plaintiff withdrew that amount from Court and that thereafter satisfaction of the decree was recorded. After recording satisfaction of the decree the Munsif proceeded with the application for amendment of the decree and on 17-10-1967 allowed it. It is from that order that C. R. P, 83 of 1968 has been filed by the plaintiff.

4. In O. S. 474 of 1954 also when the plaintiff applied for execution the 6th defendant objected on the ground that he was not liable for the decree amount. The Court dismissed his objections on 17-8-J965 stating that he was at liberty to apply for amendment of the decree On 28-8-1965 the 6th defendant applied in O. S. 474 of 1954 for amendment of the decree. On 1910-1965 he also applied for stay of execution of the decree until the disposal of the application for amendment On 20-10-1965 the application for stay of execution was dismissed and properties were sold to the plaintiff in Court auction for Rs. 1001. On 22-10-1965 the Court adjourned the case to 20-11-1965 for confirmation of the sale. From that order the 6th defendant filed an appeal before the District Court. Palghat That appeal was dismissed. Then the 6th defendant filed the present Second Appeal before this Court. On 17-10 1967 after due inquiry the Munsif allowed the 6th defendant's application in O. S. 474 of 1954 for amendment of the decree. C. R. P. 90 of 1968 relates to it.

5. The Second Appeal can first be dealt with. The order appealed against Is the one passed on 22-10 1965 and it reads as follows-

'Property sold to decree-holder for Rs. 1,001- For confirmation adjourned to 20-11-1965.'

Neither the order whereby the court ordered sale of the property nor the saleconducted on 20-10-1965 was challenged by the 6th defendant His application for stay of execution was dismissed. As the decree then stood he was also liable for the decree amount On the date of the sale nothing prevented the court from conducting the sale. After the sale was conducted the case had to be adjourned for confirmation of the sale and that was what was done by the order appealed against. There is no merit in the Second Appeal It has only to be dismissed

6. Turning now to the revision petitions the question to be considered is whether after the decrees had been satisfied, in O. S. 391 of 1951 by the withdrawal from court by the plaintiff of the amount deposited by the Gth defendant in court and in O. S. 474 of 1954 by the sale held in execution on 20-10-1965 the learned Munsif was justified in ordering amendment of the decrees. While the learned counsel appearing for the plaintiff relied upon the decisions in Kishori Mohan v. Chhanga, AIR 1925 All 187; Pitam Lal v. Balwant Singh. AIR 1925 All 556; Munuswami Filial v. Hussain Khan Sahib. AIR 1926 Mad 516 and Raghubir Singh v. Rani Rajeshwari, AIR 1933 Oudh 466, in support of the stand he took the learned counsel appearing for the 6th defendant relied upon the decisions reported in Shyamal Bihari v. Girish Narain. AIR 1962 Pat 116; Beche Lal v. Hem Singh, AIR 1953 All 485 and Nara-yandas v. Vishnu, AIR 1963 Madh Pra 158.

7. AIR 1925 All 187. Js a decision of Mukerji and Dalai, JJ. In that case the decree of the Subordinate Judge ordered payment of a larger sum than was really due on a proper calculation of the amount payable by the defendant to the plaintiff. It was that mistake that was sought to be rectified by the defendant by his application for amendment of the decree. There was an appeal by the plaintiff to the District Judge from the decree of the Subordinate Judge. The appeal was dismissed When execution was taken out the defendant without demur paid the decree amount and thus the decree was satisfied. It was thereafter that he applied for amendment of the decree. That application was dismissed.

8. AIR 1925 All 556, is a decision of Sulaiman and Daniels, JJ. In that case 3 years after a mortgage decree for sale was satisfied and the case was struck off the defendant applied for amendment of the decree on the ground that it was not in agreement with the judgment That application was dismissed. Sulaiman. J, rested his decision on the ground that correction of the decree was within the discretion of the court and that in the circumstances of that case the discretioncould not be exercised in favour of the defendant. Daniels, J. went a step further and held that the court was functus officio when a decree for money was satisfied and that thereafter the court could not entertain an application for amendment of the decree.

9. AIR 1926 Mad 516, is a decision of Spencer, J. In that case on 5-12-1923 the decree was entered as satisfied. About 10 months thereafter on 24-9-1924 an application for amendment of the decree was filed for altering the amount payable under the decree from Rs. 615-6-10 to Rs. 756-1-0. That was dismissed.

10. AIR 1933 Oudh 466, is a decision of Raza and Allsop, JJ, In that case the decree provided that if the net proceeds of the sale of the mortgaged property were not sufficient to pay the decree amount the plaintiff could apply for a personal decree for the amount of the balance. In execution of the decree when the property was put up for sale it was purchased by the plaintiff. But the sale amount covered only a portion of the total decree amount. It was after that sale that tfie defendants applied for amendment of the decree. The amendment sought for was to declare in the decree that if the decretal amount was not satisfied out of the sale proceeds the decree-holder would have no power to realise the balance from the other properties of the defendants. The amendment prayed for was refused.

11. In AIR 1925 All 187; AIR 1925 All 556 and AIR 1926 Mad 516 the applications for amendment were filed after the decrees had been satisfied. In AIR 1933 Oudh 466 the learned Judges who decided that case were not prepared to accept the contention of the defendants that the decree was not in conformity with the judgment. The facts in those decisions vary enormously from the facts here. In O. S. 391 of 1951 the application for amendment of the decree was filed long before the plaintiff withdrew from court the amount deposited by the 6th defendant and satisfaction of the decree was entered. In O. S. 474 of 1954 the application for amendment of the decree was filed before sale was conducted for the decree amount. Admittedly the plaint properties were outstanding on lease with the sub-tarwad of defendants 2 to 5 and 7 and the 6th defendant was not a member of that sub-tarwad. The correctness of the statement in the order sought to be revised in C. R. P. 83 of 1968 that paragraph 24 of the judgment made it clear that no relief was granted against the 6th defendant and the statement in the order sought to be revised in C. R. P. 90 of 1968 that the judgment showed that there was no decree against the 6th defendant was not challenged at any timeduring the hearing of the Second Appeal and Revision Petitions by the learned counsel appearing for the plaintiff. In these circumstances, the decrees in the two suits have to be taken as not in conformity with the judgments in those cases. The applications for amendment were filed in both the suits before the decrees were satisfied. For these reasons the decisions cited by the learned counsel appearing for the plaintiff cannot be applied to the facts of the present case. Further the decisions in AIR 1925 All 556 and AIR 1926 Mad 516 have been expressly dissented from in some of the later decisions.

12. The decisions cited on behalf of the 6th defendant can now be considered. AIR 1962 Pat 116 is a decision of Raj Kishcre Prasad, J. In that case after the sale in execution but before confirmation of the sale the plaintiff applied for amendment of the decree. That was allowed. The decisions in AIR 1926 Mad 516 and AIR 1925 All 556 were distinguished in that case on the ground that in those cases the applications for amendment were made after the decrees were satisfied. After distinguishing them the decision in AIR 1953 All 485 was followed. That was a decision of Agarwala, J. In that case after the sale of property for the decree amount and the whole decree had become satisfied an application was filed for amendment of the decree and all subsequent proceedings including the sale certificate. The trial court ordered amendment of the decree but not of the sale certificate and the other subsequent proceedings. The High Court refused to interfere with that order in revision. It was observed by Agarwala J. in that case that where the decree was not in agreement with the judgment the court could correct the decree to bring it into conformity with the judgment even when the decree had been executed and fully satisfied. According' to him when the decree had been fully satisfied the court may be functus officio in respect of the execution but not with regard to the power of correction. He said this in his judgment:

'As regards the contention that, after a decree is satisfied, the Court becomes 'functus officio', it may be conceded that, after a decree has been executed and satisfied, there is an end of the decree in the sense that nothing more remains to be done by way of execution and the Court is 'functus officio' in the sense that having executed the decree, it has nothing more to do and its authority is at an end. But the authority, which is so terminated is the authority to execute the decree and not the authority to correct accidental slips and errors or to review its own orders. A Court is not in thesame position, as for example, an arbitrator. An arbitrator having given his award may not have the power to modify or correct it but a Court has inherent power to correct accidental slips or errors.' And a little later on he said: 'In S. 152, Civil P. C. no time limit is fixed for making an amendment in a judgment or decree which has been occasioned by an accidental slip or error. Such an amendment may be made at any time subject, of course, to equities which may have arisen in favour of the party against whose interest the amendment is to be made.'

Following that decision Raj Kishore Pra-sad J. observed as follows in AIR 1962 Pat 116:

'I however, expressed my respectful dissent to the observation of Daniels, J., in AIR 1925 All. 556, that where a decree for money had been finally satisfied and discharged, the Court is functus officio and can no longer entertain an application for amendment under Section 152 of the Code, The above dictum, as stated also in Sheo Prasad Rai v. Dharam Sen Rai, 49 Ind Cas 948 = AIR 1919 Pat 141 reproduced in Rathnasabapathy Goundan v. Public Prosecutor, AIR 1936 Mad 516, at p. 517, has not found complete favour in subsequent decisions.

In my opinion, where a decree has been executed and satisfied and the execution thereof dismissed on full satisfaction, the court may be functus officio with respect to the execution of the decree, but it is not functus officio with respect to its power to correct its judgment, decree or order, if there is any clerical or arithmetical mistake, or. any error due to accidental slip or omission therein. The fact that the decree has already been executed and satisfied, and, therefore it Is dead, is of no consequence, and of no importance whatsoever, so far as the question as to whether its amendment asked for should be allowed or not The fact that the decree has been executed and satisfied does not take away the inherent power of the court to allow the amendment asked for its judgment, decree or order, if it is fit to be allowed, in view oE the provisions of Sections 151 and 152 of the Code, irrespective of the consideration as to how the plaintiff will proceed so far as the execution of the same is concerned after its amendment sought for is made.'

13. AIR 1963 Madh Pra 158 is a decision of Newaskar J. In that case also the application for amendment of the decree was resisted on the ground that after the decree had become satisfied the court was functus officio. In respect of that position the decisions in AIR 1925 All 556 and AIR 1926 Mad 516 were cited The learned Judge did not follow them but follow-ed the later decision in AIR 1953 All 485 and allowed the application for amendment.

14. In Jai Narain v. Chhedalal, AIR 1960 All 385 Dhavan, J. followed the decision in AIR 1953 All 485 and said.

'In my opinion, this Court, as a court of record, owes a duty to itself to ensure that its record is free from any blemish or error. If any such error is brought to its notice in any manner whatsoever and at any time whatsoever, it has the power to correct errors of a clerical nature. To hold otherwise would mean that this Court is powerless even after discovering that a particular sentence in a judgment is grammatically incorrect or absurd. I am, therefore, inclined to agree respectfully with Agarwala, J. that after the satisfaction of the decree, the Court may become functus officio as regards the execution of the decree but it retains the power to correct obvious errors in its own records. It goes without saying that the Court will not make any correction if it leads to injustice and in any case not without hearing the parties whose interests are likely to be affected.'

15. It will be appropriate at this stage to have a close look at the statutory provisions. Order 20, Rule 3 of the Civil Procedure Code, hereinafter referred to as the C. P. C., provides that except as provided under Section 152 or on review a judgment should not after it is pronounced be altered or added to. The portion in that Rule material for the present purpose reads as follows:

'The judgment. .....when once signed, shall not afterwards be altered or added to, save as provided by Section 152 or on review.'

Order 20, Rule 6 of the C. P. C. makes it obligatory that the decree should conform to the judgment. The relevant portion of it reads thus:

'Rule 6 (1) The decree shall agree with the judgment;. ...'

It is the Judge himself who prepares the judgment. In the case of a decree nothing prevents a Judge from drawing it up but it is usually drawn up by a ministerial officer on the staff of the court. It has not to be pronounced in open court unlike a judgment. In the case of subordinate courts the Judge has only to sign it after he is satisfied that it has been drawn up in conformity with the judgment. The relevant portion of Order 20 Rule 7 which deals with it says:

'. . . . .when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment he shall sign the decree.' The proviso to it added by the amendment made by this Court reads thus:

'Provided that the decrees of the High Court may be signed by the officer empowered in that behalf.' Section 152 of the C. P. C. which embodies what is usually called the slip rule reads thus: '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 of its own motion or on the application of anv of the parties.'

A reading of all these provisions shows that insistence is not on judgments being in accordance with decrees but vice versa and that corrections of both judgments and decrees can be made 'at any time'. The time factor does not control amendments under Section 152 of the C. P. C. because that factor applies only to acts of the litigants and not of courts. The only limitation on the exercise of the power of amendment is the scope of the Section under which that power is exercised.

16. I shall now refer to some provisions in England regarding correction of judgments and decrees and a decision which is considered important on the subject. The 103rd General Order of 1043 which declared the practice and rule then prevailing in Equity and which is usually called the slip order provided that

'any clerical mistake in a decree, or any error arising from any accidental slip or omission, may at any time be corrected on motion or petition.' Order 28, Rule 11 of the English Rules of the Supreme Court which embodies the slip rule is identical with Section 152 of the C. P. C. In In re. Swire, Mellor v. Swire, (1885) 30 Ch D 239, Cotton, L.J. said: '. . .it is only In special circumstances that the Court will interfere with an order which has been passed and entered, except in cases of a mere slip or verbal inaccuracy, yet in my opinion the Court has jurisdiction over its own records, and if it finds that the order as passed and entered contains an adjudication upon that which the Court in fact has never adjudicated upon, then, in my opinion, it has jurisdiction, which it will in a proper case exercise, to correct its record, that it may be in accordance with the order really pronounced.'

Lindley, L. J. :

'This case has raised a discussion of some importance, because it was contended that when once the order of the Court was passed and entered it could not be put right, even although as drawn it did not express the order as intended to be made. I protest against any such notion. There is no such magic in passing andentering an order as to deprive the Court of jurisdiction to make its own records true, and if an order as passed and entered does not express the real order of the Court, it would, as it appears to me. be shocking to say that the party aggrieved cannot come here to have the record set right, but must go to the House of Lords by way of appeal. According to the old practice there was no difficulty, because the ordinary practice in the Chancery Division was. that after a decree or order had been passed and entered, any error could be put right by an application to rehear, unless the order had been enrolled. After enrolment the Court had no power over its decree. But even then there was power to vacate the enrolment on proper grounds, and when that had been done the Court again had power over its own decree. Now. rehearing has been abolished, and enrolment has become obsolete, but does it follow from that that the Court cannot correct a blunder of the kind I have assumed? I maintain that it has such a power, and I am glad to find that Lord Penzance and the House of Lords have asserted it. It appears to me, therefore, that if it is once made out that the order, whether passed and entered or not, does not express the order actually made, the Court has ample jurisdiction to set that right, whether it arises from a clerical slip or not.'

and Bowen. L. J.:

'I think the true view is, as stated by the Lord Justice Cotton, that every Court has inherent power over its own records as long as those records are within its power, and that it can set right any mis take in them. It seems to me that it would be perfectly shocking if the Court could not rectify an error which is really the error of its own minister. An order, as it seems to me. even when passed and entered, may be amended by the Court so as to carry out the intention and express the meaning of the Court at the time when the order was made, provid ed the amendment be made without injustice or on terms which preclude injustice. The Lord Justice Lindley has pointed out that this power which we are now asserting is a power which was always possessed by the Courts of Chancery under the old system. On that point I say nothing. But I venture to add this, that it is a power which has been exercised for hundreds of years by the Common Law Courts, and it would indeed be strange if the power were found to have disappeared when the Court of Appeal was created by the Judicature Act. Lord Penzance. speaking as a common law lawyer, was well justified, as one would expect from a Judge of his great distinction, in saying that at common law it was always understood that the Court had the power to make these corrections. When there was any mistake which could be ascribed to the officers of the Court, judgments at common law could always be amended in the term, and in some cases after the term in which they were pronounced.'

17. I pause here to consider whether correction under Section 152 of the C. P. C. is discretionary or obligatory. In this connection it is useful to refer to the two important principles on the basis of which Section 152, C. P. C. has been enacted. The first of them is the maxim that an act of the court shall prejudice no man and the other that courts have a duty to see that their records are true and that they represent the correct state of affairs. It is because these are considered to be some of the highest duties of courts that in Section 152 of the C. P. C. it has been provided that even in the absence of any move on the part of the parties the court can of its own motion make the correction. In Chandra Kumar Mukhopadhya v. Sm. S.B. Debi, AIR 1924 Cal 895, Suhrawardy, J. said that if the conditions laid down in Section 152 of the C. P. C. were satisfied it was obligatory on the part of the court to order correction and that it was not a mere discretionary power that was embodied in that Section. He said:

'The word 'may' In the section does not make it discretionary with the Court to order the correction, but merely enlarges the power of the Court by providing that such correction can be done 'at any time'; or in other words, the section simply emphasises that no lapse of time would disentitle the Court to make the correction. As has been observed the intention of the law is to make it obligatory upon the Court whenever any such mistake is discovered to correct it, and Section 152 merely emphasises that duty of the Court by saving that it may be done at any time without limitation. This view, namely, that it is the duty of the Court to amend the decree when it is brought to its notice that it does not agree with the judgment, is supported by a number of cases of which reference may be made to the cases of Shivapa v. Shivpanch Lingapa, (1887) ILR 11 Bom 284, Kalu v. Latu. (1894) ILR 21 Cal 259, Menat Ali v. Amdar Ali, (1905) 9 Cal WN 605. Basanta Kumar Bose v, Khulna Loan Co.. 19 Cal WN 1001=26 I. C. 197 = 20 Cal LJ 1 = AIR 1915 Cal 24 and Surendra Nath Roy v. Girija Nath Roy. (1912) 15 Cal LJ 658 = 15 Ind Cas, 010.'

In K.C. Mukerjee v. Ainaddin, AIR 1932 Cal 563 the same learned Judge explained in the following way the position he took in the earlier case:

'What is meant by saying that it is the duty of the Court or it is incumbent uponthe Court to bring the decree in conformity with the judgment is that in all cases where no equitable considerations intervene to induce the Court to refuse to exercise its power of amendment which is necessary for the ends of justice, the Court should, or to put it in stronger language, must amend the decree. The discretion, if it has any in the matter, should be exercised judicially and should not be refused except where it will be inequitable to do so.'

In the same decision Graham, J. disagreed with the views of Suhrawardy, J. He said:

'Order 20. Rule 6. Civil P. C., provides that 'the decree shall agree with the judgment.' At the same time Section 152 of the Code, which deals with the amendment of decrees and orders, is in its language discretionary, and it cannot in my judgment be laid down as a hard and fast rule that amendment must be allowed as a matter of course in every case regardless of its particular facts.'

In AIR 1925 All 187 it is observed as follows:

'Under Section 152 of the Civil Procedure Code, there is no right in any party to have a clerical or arithmetical mistake corrected. The matter is left to the discretion of the court and the discretion has to be exercised in view of the peculiar facts of each case.'

As regards correction by court the word used in Section 152 is only 'may'. That implies that even if all the conditions laid down in the Section are satisfied the' Court may not also in some cases order correction. It is clear that the power of, correction under Section 152 of the C. P. C. is only discretionary.'

18. Some of the important decisions dealing with the circumstances under which the court may not make corrections can now be dealt with. In Hatton v. Harris. 1892 AC 547 Lord Herschell said:

'There Is one observation which I ought to make, and it is this, that there may possibly be cases in which an application to correct an error of this description would be too late. The rights of third parties may have intervened, based upon the existence of the decree and ignorance of any circumstances which would tend to show that it was erroneous, so as to disentitle the parties to the suit or those interested in it to come at so late a period and ask for the correction to be made. There might be a ground of that description which would induce the tribunal to say 'No; although this is a slip, and one which would have been corrected at the time, you have delayed so longthat you have allowed rights to grow up which it would now be unjust to prejudice, and it is impossible to make the correction.'

And Lord Watson said;

'When an error of that kind has been committed, it is always within the competency of the Court, if nothing has intervened which would render it inexpedient or inequitable to do so. to correct the record in order to bring it into harmony with the order which the judge obviously meant to pronounce.'

In AIR 1924 Cal 895 Suhrawardy. J. said that there was only one exception to the rule that corrections under Section 152 of the C. P. C. could be made at any time and that that was when the amendment would offend against principles of equity as when the rights of third parties had intervened. He said:

'The only exception to this general rule is that the Court will refuse to make the amendment where it offends against the principles of equity; for instance, it may not be desirable to amend the decree where the interest of a third party (who may be a bona fide transferee for valuable consideration) may be jeopardised. ((1892) A. C. 547=62 LJ P. C. 24=67 LT 722 = 1 R. 1). A reference to the reported cases on this point shows that amendment has been allowed even long after the passing of the decree without limit of time.'

The same view was taken by Mitter, J. in Midnapore Zamindary Co. Ltd. v. Abdul Zalil, AIR 1933 Cal 627. He said:

'The first contention of the appellant has really no substance, for it is now well settled that a decree could be brought into conformity with the judgment even after the lapse of years and that the only limitation is that the Court may deem it inexpedient or inequitable to exercise its powers where third parties have acquired rights under the erroneous decree without a knowledge of the circumstances which would tend to show that the decree was erroneous: see 1892 A.C, 547=62 LJ PC 24=67 LT 722'.

19. With great respect to the learned Judges who have decided otherwise it is not possible to take the view that there is any exception whatsoever to the rule embodied in Section 152 of the C. P. C. That is simply because no exception to that rule is mentioned either in that Section or anywhere else in the C. P. C. No doubt equitable principles like the acquisition of rights by innocent third parties under the erroneous decrees ought to be taken into account before thediscretion is exercised but that is different from saying that they are exceptions to the rule in Section 152. There are no iron rails through which alone judicial discretion should pass. If iron rails are set for its run it ceases to be discretion. That does not mean that it can be exercised according to the whims and fancies of each individual judge. The discretion to be exercised is judicial, and that is certainly a limitation because there are natural limitations implicit in the exercise of judicial discretion.

20. I may now summarise my conclusions as follows:

(1) The power of correction under Section 152 of the C. P. C. is discretionary;

(2) There is no time limit for its exercise. It can be exercised at any time even after the decree has been fully satisfied and recorded also as such;

(3) The only limitation for its exercise is the scope of the Section within which it functions; and

(4) Before exercising or refusing to exercise it, it has to be borne in mind that to take care to see that none of its acts causes any injury to any of the suitors and to see that its records are true, are two of the important duties of all courts and that at the same time it would be inequitable to order amendment when rights have been acquired under the erroneous decree by innocent third parties or when any other principle of equity is offended. As to which of those considerations should be given greater importance than the others and which of them should prevail in cases of conflict are matters for the exercise of sound judicial discretion which in turn depends on the facts and circumstances of each case.

21. In the instant cases the decrees are not in conformity with the judgments. Innocent third parties have not acquired rights under the erroneous decrees. No other principle of equity is also offended by the amendments. In exercising his jurisdiction under Section 152 of the C. P. C. and ordering correction of the decrees in the two cases the learned Munsif acted properly.

22. In the result the Second Appeal and the Revision Petitions are dismissed but in the circumstances without costs.


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