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Smt. Gulab Bai Vs. Ram Pratap - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 525 of 1972
Judge
Reported inAIR1973Raj307; 1973()WLN295
ActsCode of Civil Procedure (CPC) , 1908 - Sections 34(2) and 152 - Order 20, Rules 3 and 6 - Order 34, Rules 4 and 11
AppellantSmt. Gulab Bai
RespondentRam Pratap
Appellant Advocate S.N. Chhangani, Adv.
Respondent Advocate D.S. Shisodia, Adv.
DispositionAppeal allowed
Cases ReferredState of M. P. v. Man Mohan Swaroop
Excerpt:
civil procedure code - section 152--court not awarding interest--held, omission is not accidental and application under section 152 does not lie.;it cannot be said that the omission on the part of the court to award interest in the present case was accidental. the omission may be erroneous but the proper remedy for the aggrieved party lies either in filing an appeal or applying for review in case the application for review is competent, but in my opinion an application under section 152 c.p.c. does not lie for the purpose. - - 3. on account of failure of the defendant to pay the amount and on an application having been moved by the plaintiff in this connection, a final decree was passed on 12-1-1972 directing that the mortgaged property be sold and out of the sale proceeds the mortgage..........the learned munsiff, allowed the application moved by the plaintiff-respondent under section 152, civil procedure code and directed that the preliminary decree be amended and a direction be added in the decree that the plaintiff is entitled to get interest at the rate of 24% per annum from 1-10-1969 (date of the suit) to 11-1-1971 (date of preliminary decree) and at the rate of 6% per annum from 12-1-1971 till the realisation of the amount. 2. the facts leading to the proceedings out of which this revision arises are not in dispute. the plaintiff-respondent rampartap filed the suit for recovery of rupees 3600/- along with costs and interest against the defendant-petitioner and prayed that in case the defendant did not pay the amount within such period as may be fixed by the court, a.....
Judgment:
ORDER

C.M. Lodha, J.

1. This is a revision application by the defendant from the order of the Munsiff, Kota dated 19-8-1972 in Civil Original Case No. 290 of 1970, by which the learned Munsiff, allowed the application moved by the plaintiff-respondent under Section 152, Civil Procedure Code and directed that the preliminary decree be amended and a direction be added in the decree that the plaintiff is entitled to get interest at the rate of 24% per annum from 1-10-1969 (date of the suit) to 11-1-1971 (date of preliminary decree) and at the rate of 6% per annum from 12-1-1971 till the realisation of the amount.

2. The facts leading to the proceedings out of which this revision arises are not in dispute. The plaintiff-respondent Rampartap filed the suit for recovery of Rupees 3600/- along with costs and interest against the defendant-petitioner and prayed that in case the defendant did not pay the amount within such period as may be fixed by the court, a direction may be given for sale of the mortgaged property. After trial the learned Munsiff, Kota passed a preliminary decree on 11-1-1971 under Order 34, Rule 4, Civil Procedure Code for a sum of Rs. 3600/-and it was further ordered that the defendant shall pay into the court the said amount by 30th April, 1971 and in default of payment as aforesaid the plaintiff may apply to the court for a final decree for the sale of the mortgaged property.

3. On account of failure of the defendant to pay the amount and on an application having been moved by the plaintiff in this connection, a final decree was passed on 12-1-1972 directing that the mortgaged property be sold and out of the sale proceeds the mortgage money shall be first paid to the plaintiff and if there remains any balance thereafter the same may be paid to the defendant. After about 3 months of the passing of the final decree, the plaintiff made an application under Section 152, Civil Procedure Code on 10-4-1972 that the court while passing the preliminary decree had inadvertently omitted to award interest pendente lite and future interest on the suit amount as provided under Order 34, Rules 4 and 11, Civil Procedure Code and consequently the preliminary decree may be corrected by introducing therein a direction for payment of interest pendente lite and future interest This application was opposed by the defendant-petitioner on the ground that no such amendment could be made in the decree under Section 152, Civil Procedure Code. The defendant's objection was however overruled and the decree was ordered to be corrected as prayed. Aggrieved by the order of the learned Munsiff the defendant has come in revision to this court.

4. It may be pointed out that the learned Munsiff has not at all addressed himself to the question whether the type of prayer made by the plaintiff for amending the decree fell within the scope of Section 152, Civil Procedure Code. Under Section 152, Civil Procedure Code a clerical or arithmetical mistake or an error arising from an accidental slip or omission may be corrected by the court. The present is not a case where the decree originally passed was at variance with the judgment in which case the court would have inherent power to bring the decree in conformity with the judgment so as to express its true intention, but where as here, the decree had been drawn up so as to completely agree with the judgment as required by Order XX, Rule 6, Civil Procedure Code, it could not be changed without altering the judgment. It is specifically provided in Order XX, Rule 3, Civil Procedure Code, that 'when once signed, the judgment shall not afterwards be altered or added except as provided by Section 152 or on review. Section 152, Civil Procedure Code reads as under:--

'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.'

No clerical or arithmetical mistake was suggested in the present case. The only question therefore is whether there was any accidental slip or omission, giving rise to an error in the judgment and decree of the trial Court. It may be pointed out that the key word in the relevant phrase is 'accidental' and it qualifies an 'omission' also. Thus the procedure provided in the rule cannot be used to correct omissions, however erroneous, unless they are accidental. Now the judgment and decree in question make it abundantly clear that the learned Munsiff who passed the decree did not award any interest Section 34(2), Civil Procedure Code provides that 'where such a decree is silent with respect to the payment of further interest on such principal sum as aforesaid, from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefor shall not lie.'

5. The above provision leaves no manner of doubt that if a decree is silent with respect to the payment of future interest, then the court shall be deemed to have re-fused such interest.

Again Order XXXIV, Rule 11, Civil Procedure Code provides as under:

'In any decree passed in a suit for foreclosure, sale or redemption, where interest is legally recoverable, the Court may orders payment of interest to the mortgagee, as follows, namely:--

(a) interest upto the date on or before which payment of the amount found or declared due is under the preliminary decree to be made by the mortgagor or other person redeeming the mortgage-

(i) on the principal amount found or declared due on the mortgage,--at the rate payable on the principal, or where no such rate is fixed, at such rate as the Court deems reasonable,

(iii) ................................................

(b) subsequent interest upto the date of realisation or actual payment on the aggregate of the principal sums specified in Clause (a) as calculated in accordance with that clause at rate as the Court deems reasonable.'

6. From the foregoing provisions it appears that it is in the discretion of the Court to allow further interest from the date of the decree, so also the Court has discretion in awarding interest for the period after the institution of the suit and at any rate it is not bound to award interest for such period at the contractual rate. I am conscious of the difference of opinion among the various High Courts on the question whether the Court can refuse interest for the period after the institution of the suit upto the date of decree, but that is not the point in the present case, and I am not expressing any opinion on it. The only point for decision is whether omission on the part of the Court to give any direction in the preliminary decree regarding payment of interest from the date of institution of the suit and from the date of decree can be said to be 'accidental slip or omission'. In view of the provisions, I have referred to above, it cannot be said that the omission on the part of the Court to award interest in the present case was accidental. The omission may be erroneous but the proper remedy for the aggrieved party lies either in filing an appeal or applying for review in case the application for review is competent, but in my opinion an application under Section 152, Civil Procedure Code does not lie for the purpose. If any authority is needed on the point reference may be made to Sachindra Nath v. Pankajini Dasi, (1950) 5 DLR (FC) 68, and Thirugnanavalli Ammal v. Venugopala Pillai, AIR 1940 Mad 29.

7. Learned counsel for the respondent relied upon State of M. P. v. Man Mohan Swaroop, AIR 1966 Madh Pra 270, in support of his contention that the application under Section 152 was maintainable in such circumstances as exist in the present case. It may be pointed out that that was a case under the Land Acquisition Act, and Section 34 of the Land Acquisition Act as amended in that State expressly provided that when the amount of compensation is not paid or deposited on or before taking possession of the land the Collector shall pay the amount awarded with interest thereon. It was further observed that there was nothing in the order passed by the Lower Court to indicate that it wanted to deprive the respondent of the interest. The case is distinguishable on facts. Moreover, there does not appear any discussion in this ruling as to whether the omission in the decree to award interest was accidental. On the other hand, it was taken for granted that the direction about interest was inadvertently omitted. What seems to have weighed with the learned Judges was the provision contained in Section 34 of the Land Acquisition Act, which was held to be mandatory. The rationale of that decision therefore has no application to the facts and circumstances of the present case.

8. In the result, I allow this revision application, and set aside the order of the learned Munsiff, Kota dated 19-8-1972. In the circumstances of the case I make no order as to costs.


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