T.V.R. Tatachari, J.
(1) This Revision Petition has been filed by the Life Insurance Corporation of India, which has its northern zonal office at Asaf Ali Road, New Delhi, against an order, dated 18-4-1966, passed by Shri V. P. Bhatnagar, Sub-Judge, 1st Class, Delhi, declining to amend under section 152 of the Code of Civil Procedure, his judgment and decree, dated 30-10-1965, in suit No. 382 of 1963. and grant future interest to the decree-holder, petitioner herein.
(2) R. N. Mehta, the sole respondent in this Revision Petition, borrowed a sum of Rs.25,000.00 from the Bombay Life Assurance Company Limited, and mortgaged certain properties in favor of the said Company by means of a registered mortgaged deed, dated 30-9-1953. The mortgage amount was to be paid back on the expiry of 15 years from the date of the deed. The respondent herein also assigned his life assurance policy as additional security for the sum advanced and agreed to continue to pay the premium regularly and to keep the said policy in full force. He further agreed that he would pay interest at the rate of 6% per annum with half yearly rests regularly at the end of each half year, and that in case of default in the payment of any Installment or interest or the premium, the mortgagee might enforce and recover the entire amount then outstanding immediately. The assets and liabilities of the Bombay Life Assurance Company Limited vested in the petitioner-corporation with effect from 1-9-1956 under section 7 of the Life Insurance Corporation Act, and thus the petitioner herein became the mortgagee and was entitled to recover the amounts due there under.
(3) Alleging that the respondent herein committed default in the payment of interest and premium, and claiming, thereforee, that the petitioner herein had become entitled to recover the entire amount due under the mortgage deed, the petitioner herein filed a suit, No. 382 of 1963, in the Court of Shri V. P. Bhatnagar, P.C.S., Sub-Judge, 1st Class, Delhi, on 19-5-1963. The amount stated in the plaint as due up to the date of the suit was as under :-
Balance of Principal .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. Rs.17,000.00 Balance of interest up to 19-5-63 .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 2,121.56 Amount of fire premium that was paid by the plaintiff and still due .. .. .. .. Rs. 147.00 -------------- Total .. .. Rs. 19,268.56 --------------
It was prayed in the plaint that a decree may be passed for sale of the mortgaged property 'for the recovery of Rs. 19,268.56 Naya Paise together with court costs, further fire insurance premium and future interest at 6% per annum from the date of the institution of the suit till the realisation of the decree amount', and that a direction may be given that the plaintiff shall be at liberty to apply for a personal decree against the defendant under order 34 Rule 6, Code of Civil Procedure, in case the net proceeds of the sale are ultimately found insufficient to cover the decree amount.
(4) The suit was resisted by the respondent herein on various grounds including a ground that the plaintiff was not entitled to recover any interest. Various issues were framed, and the issue regarding the plea about interest was issue No. 3, which ran as follows :-
'3.Whether the plaintiff is entitled to recover any interest If so, how much ?'
But, at the hearing of the suit, the learned counsel for the defendant (respondent herein) conceded all the issues except issue No. 4 in favor of the plaintiff and submitted that the only point on which he would argue under issue No. 4 was that the plaintiff had not become mortgage qua the defendant and, as such. was not competent to file the suit at all. The learned Subordinate Judge, by his judgment, dated 30-10-1965, held that the plaintiff-corporation did become the mortgagee and was entitled to claim the amount, and thus decided issue No. 4 in favor of the plaintiff, in the resuit, the learned Judge passed preliminary decree with costs for the recovery of Rs. 19,268.56 nP. by the sale of the mortgaged property. He further stated in his judgment that the defendant may pay the decretal amount to the plaintiff within three months from the date of the judgment after which, in case of default, the plaintiff shall be entitled to apply for a final decree directing the sale of the mortgaged property, and that in case the sale proceeds are ultimately found insufficient to cover the decretal amount, the plaintiff may apply for a personal decree against the defendant. He directed that a decree sheet be drawn up accordingly.
(5) It may be noted that the amount of Rs. 19,268.56 nP. mentioned in the plaint included interest only up to the date of the suit and the plaintiff prayed for future interest. However, in the judgment the learned Subordinate Judge passed a preliminary decree for the said amount of Rs. 19,268.56 nP., and the judgment did not mention any thing about the future interest i.e. the interest from the date of the filing of the suit till the date of redemption and the interest from the date of redemption till realisation. A decree was drafted in accordance with the judgment, and since the judgment was silent about the future interest, the decree also did not provide for future interest.
(6) On 1-1-1966, the plaintiff (the petitioner herein) filed an application under section 152 of the Code of Civil Procedure for amendment of the judgment and the decree, dated 30-10-1965, providing for future interest at the rate of 6% per annum from the date of suit till realisation. It was alleged in the said application that the Court was pleased to pass a preliminary decree on 30-1-1965 including future interest, that. however, on obtaining the certified copies of the said judgment and decree, the plaintiff was surprised to find that the future interest was not mentioned in the judgment and the decree, and that the said omission appeared to 'have been caused due to some accidental slip, clerical mistake or otherwise as a result of which the relevant certified copies of the judgment and decree sheet were not in accordance with the judgment as announced by the court on 30-10-1965 in the presence of the counsel for the plaintiff and the representative of the plaintiff.'
(7) An affidavit of the representative of the plaintiff was filed along with the application stating that he was present in the court at the time when the judgment was announced on 30-10-1965, and that the court passed a preliminary decree for the amount claimed in the suit including future interest. However, a persual of the original judgment and decree shows that the future interest was not mentioned either in the judgment or in the decree. The allegation about the announcement by the court including the future interest was denied by the defendant (respondent herein) and, in fact, it does not appear to have been pressed at the time of the arguments on the application. By an order, dated 18-4-1966, Shri V. P. Bhatnagar. declined to amend the judgment and the decree observing the amendment .prayed for did not come within the ambit of section 152. Code of Civil Procedure, and moreover he was not competent to allow future interest at that stage as no such interest had been allowed in the judgment, dated 30-10-1965. It is against the said order that the present revision petition had been filed by the plaintiff. Lite Insurance Corporation of India.
(8) Mr. Sethi, learned counsel for the petitioner-corporation, contended that the provisions in Order 34, Rules 2, 4 and Ii, Code of Civil Procedure, are mandatory provisions which make it obligatory for the Court while passing a preliminary decree in a suit on a mortgage to provide for interest pendente lite and from the date of the decree till date of realisation in the judgment and the preliminary decree, that in view of the said mandatory provisions and also the form prescribed for the preliminary decree under the Code of Civil Procedure, the omission to give a direction in the judgment and the decree regarding interest pendente lite and till date of realisation could be attributed only to an accidental slip. omission, error or mistake within the meaning of section 152 of the Code of Civil Procedure, that the amendment prayed for by the petitioner was, thereforee, within the ambit of the said section, and that the learned Sub-ordinate Judge failed to exercise the jurisdiction vested in him by declining to make the amendment prayed for.
(9) It has to be noted that this is not a case in which the decree was not in conformity with the judgment. As already stated above, the judgment and the preliminary decree were both silent about the interest pendente lite and till date of realisation. The argument of the learned counsel for the petitioner was that the suit being one to enforce a mortgage, it was obligatory on the part of the Court to have directed payment of such interest in view of the provisions in Order 34. Rules 2, 4 and Ii and the form prescribed in the Code of Civil Procedure for a preliminary decree in a suit upon a mortgage, and that the omission to give effect to the said mandatory provisions of law by directing the payment of such interest should have been regarded as an accidental slip or omission on the part of the Court which could be rectified under section 152 of the Code of Civil Procedure.
(10) The said section 152 provides that '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'. An averment was made in the application filed under section 152 that when the judgment was announced, future interest was also mentioned, but that the same was not to be found in the judgment and the decree when copies of the same were obtained by the petitioner. No doubt, an affidavit of the representatives of the petitioner-corporation was filed in support of the said averment. Apparently, the object of the averment was to contend that the omission to provide for future interest was a clerical mistake in the judgment and the decree. But, such a contention does not appear to have been urged before the learned Subordinate Judge, and was not raised in the grounds of the Civil Revision. Mr. Sethi also did not urge the said contention. His only contention before me was that the provisions of law regarding future interest being mandatory and the direction for payment of future interest being obligatory on the part of the Court in passing a preliminary decree in a suit on a mortgage, the omission to give such a direction could only be attributed to an accidental slip or omission within the meaning of section 152. Code of Civil Procedure.
(11) In support of the first part of his contention that the direction about future interest i.e. interest pendente lite and till realisation is obligatory, the learned counsel referred to the following decisions: In Jai Govind Singh v. Lachmi Narain , the Federal Court, in dealing with the question whether the Court is bound to allow the contractual rate of interest pendente lite, observed at page 23 of the report that the special provision in Order 34 has to be applied in preference to the general provision in section 34 of the Code of Civil Procedure in a suit on mortgage, and that the special provision in Order 34, Rule Ii inserted by Act Xxi or 1929, which removed any conflict that there might have been between section 34 and Order 34 Rules 2 and 4, has given a certain amount of discretion to the Court so far as interest pendente lite and subsequent interest are concerned. It was further observed that-
'IT is no longer absolutely obligatory on the Courts to decree interest at the contractual rate up to the date of redemption in all circumstances, if there be no question of the rate being penal, excessive or substantially unfair within the meaning of the Usurious Loans Act, 1918.'
In Sukhraj Rai v. Ratinath Panjiara Air 1942 Patna 102, a Division Bench (Harries, C.J. and Chatterji, J.) of the High Court of Patna observed at page 103 that by the aforesaid decision their Lordships of the Federal Court 'did not intend to lay down that the Court has a power under Order 34 Rule Ii to refuse pendente lite interest altogether'.
(12) In Nilmoni Sardar v. Baidyanath Das, 0043/1957 : AIR1957Cal140 a Division Bench (R. P. Mookerjee and P. K. Sarkar, JJ.) of the High Court of Calcutta, relying on the decision of the Privy Council in Kusum Kumari v. Devi Prasad , and the decision of the Federal Court in Jai Gobind Singh's case (supra), held that 'in a suit brought by the mortgagee to enforce the mortgage created in his favor containing an interest clause, the Court is bound to decree pendente lite interest, it being left to the discretion of the Court at what rate it is to be allowed'.
(13) In Kishen Rai v. Radhalal, , I.N. Modi, J. after a review of the aforesaid decisions and other decisions, observed at page 150 that the principles for the award of interest, pending and future, in a mortgage suit may be summed up somewhat as follows:-
'(1)There can be no doubt or dispute that where the interest claimed is opposed to any law, or the rate of interest claimed is penal or extortionate or is contrary to any law, such interest has to be disallowed or the rate claimed cannot be permitted and must be reduced as the case may be. It seems to me that this rule applies equally to interest up to the period of the suit as well as to pending and future interest. (2) But even where interest is legally recoverable and the rate of interest is not penal or unconscionable or otherwise excessive according to any law, it is open to a court to vary the rate so far as the period between the date of suit and the date fixed for redemption in a preliminary decree is concerned, and high support for this view is to be found in several decisions of the Federal Court including Jai Gabind Singh's case (B) already cited above. The decisions which take a contrary view namely, that where interest is allowed, it must be allowed at the contractual rate and the rate cannot be varied, do not lay down the law correctly. (3) The view taken in some cases that O. 34, R. 11 permits an absolute refusal of interest pendente lite even where interest is legally recoverable and is not opposed to any law does not appear to be correct having regard to the terms of O. 34, R. 2 or 4 or 7, which clearly require an account to be taken of both principal and interest on the mortgage, as also S. 34 of the Civil Procedure Code. It is true that under S. 34, the award of interest from the date of suit to the date of decree is discretionary, but the discretion must be exercised on sound principles, and the rate of interest may certainly be reduced where it is justified by the circumstances of a case. It clearly seems to me, however, that when the Federal Court observed in Jai Gobind Singh's case (B). that the special provisions contained in O.34. R.11 removed the conflict between S. 34 and certain rules of O.34, it was in the sense just mentioned above that they had made the observation in question, and that observation should not be interpreted to support the view contended for that even where interest was legally recoverable, it could be refused altogether, (4) As for subsequent interest, i.e. interest from the date of redemption fixed in the preliminary decree up to date of payment or realisation of the mortgage money, the matter rests clearly in the domain of judgment and the grant 'of such interest is entirely in the discretion of the Court'.
(14) In Soil Pestonji Majoo v. Ganga Dhar. : [1969]3SCR33 , the Supreme Court had to deal with the question of rate of interest, and referring to the decision of the Privy Council in Jagannath v. Surajmal Air 1927 P.C. l(^), set out the legal position regarding the rate of interest prior to the insertion of the new Rule 11 in Order 34 by amendment in 1929, as follows :-
'but Order 34, Rules 2 and 4 which applied to a mortgage suit, enjoined the Court to order an account to be taken of what was due to the plaintiff at the date of such decree for principal and 'interest on the mortgage'. The special provision in O. 34 had thereforee, to be applied in preference to the general provision in section 34. Till the period for redemption expired thereforee the matter was considered to remain in the domain of contract and interest had to be paid at the rate and with the rests specified in the contract of mortgage but after the period for redemption had expired the matter passed from the domain of contract to that of judgment. The right of the mortgage would henceforth depend not on the contents of his bond but on the directions of the decree',
Their Lordships then referred to the new Rule 11 in Order 34 and the decision of the Federal Court in Jai Gobind Singh's case (supra), and adopted the legal position under the said new Rule Ii as expressed by the Federal Court, namely that -
'the language of the rule gives a certain amount of discretion to the Court so far as interest pendente lite and subsequent interest is concerned and it was no longer absolutely obligatory on the Courts to decree interest at the contractual rate up to the date of redemption in all circumstances even if there is no question of the rate being penal, excessive or substantially unfair within the meaning of the Usurious Loans Act, 1918.'
(15) The last decision cited by the learned counsel is the decision of a Division Bench (Hardayal Hardy and M. R. A. Ansari, JJ.) of this Court, dated 31-8-1970, in Balkishan Dass v. Shakuntala Devi, R.F.A. 71-D of 1963(8). The Division Bench observed that the principles set out by Modi, J. of Rajasthan High Court in Kishan Raj's case (supra) were correctly stated, and applied the same to the facts of the case before them.
(16) Thus, some of the decisions referred to by the learned counsel for the petitioner were concerned with the question regarding the rate at which interest pendente lite and subsequent interest may be granted. We are not concerned with this question in the present Civil Revision. The other decisions, namely, the decisions in Kusum Kumari v. Devi Prasad A.T.R. 1936 P.C. 63 NilmomSardai- v. Baidyanath Das, 0043/1957 : AIR1957Cal140 ; Kishen Raj v. Radhalal, , and the decision of the Division Bench of this Court in the case of Balkishan Dass dealt with the question with which we are concerned in this Revision, namely, whether it is obligatory on a Court to grant interest pendente lite and subsequent interest, and it has been held that in a suit on a mortgage, if the mortgage deed contains an interest clause and the interest is legally payable, it is obligatory on the Court to decree interest pendente lite i.e. from the date of filing the suit till the date fixed for redemption, it being left to the discretion of the Court at what rate the said interest is to be allowed, and that as regards subsequent interest it is entirely in the discretion of the Court.
(17) Coming now to the second part of the contention of the learned counsel for the petitioner, the argument was that interest from the date of suit till the date fixed for redemption being obligatory, the omission to grant the same in the judgment and in the preliminary decree should be regarded as an error arising therein from an 'accidental slip or omission' within the meaning of section 152 of the Code of Civil Procedure. On the other hand, Mr. Madan Bhatia, learned counsel for the respondent contended that the words 'slip 'or omission' were qualified by the word 'accidental', that the word 'accidental' means 'unintentional', that it must appear from the judgment or there must be some evidence that the Court had originally intended to grant interest but failed to do so, and then only the failure can be said to be an accidental slip -or omission, that in the present case there is nothing in the judgment in the suit to indicate that the trial Court had originally intended to grant interest, and that the failure or omission in not giving effect to a mandatory provision can at the most be regarded as an error of law in the judgment and the decree, and the same can be rectified only on a review or in an appeal and not in an application under section 152. Mr. Bhatia referred to some decisions in which the scope of the aforesaid words in the section has been explained.
(18) In Raj Bahadur Singh v. Raj Bachan Singh , Agarwal and Madeley, JJ. observed that 'the test is whether the order as it stands represents the intention of the judge at the time he made it and if it does then a mistake in it cannot be treated as an accidental slip or omission which may be corrected under section 152'.
(19) In Jangali Singh v. Ranijag Singh : AIR1944All198 (10), Verma, J. held that where a Court passed a wrong decree on a mistake of law, the mistake cannot be assumed to have arisen from accidental slip or omission.
(20) In Suba Singh v. Sadhu Singh, , A.N. Grover and Jindra Lal, JJ. observed that use can be made of the powers under section 152 if the intention of the Court is quite clear and by some clerical error or omission that intention is left in doubt or is not properly effectuated, and that the Court is bound to correct such errors or mistake which fall within the ambit of section 152.
(21) In Krishna Mohan v. Nripendra Nath : AIR1952Cal577 , an application by a judgment-debtor under section 36 of Bengal Money Lenders Act No. X of 1946 to reopen a mortgage decree was allowed and a 'new preliminary decree was passed, but in doing so no direction was given for restoration of possession of the decree-holder auction purchaser in case of default in payment of the Installments, etc. as provided in the reopened decree. On an application by the decree- holder for amendment of the decree, the trial Court made the amendment under section 151' and 152 of the Code of Civil Procedure. In a revision petition against the 'order of amendment to the. High Court, Das and K. C. Das Gupta, JJ. held that the omission to give the direction for restoration of possession was purely a case of error on the part of the Court, that such an error could be remedied only by proper proceedings by way of review or an appeal, that the error could not be said to be an accidental slip or omission which justified the Court in exercising its power under section 152, and that the. Court could not also exercise its inherent powers under section 151 for the reason that those powers could not be invoked where there was another remedy available to the party. The learned Judges referred to the following observations of the Federal Court in Sachindra Nath v. Sm. Pankijini Dassi, 5 Dlr (FC) 68
'it needs to be stressed that the key-word in the relevant phrase is 'accidental' and it qualifies 'omission' also, with the result that the procedure provided by the section cannot be used to correct omissions, however, erroneous, which are intentional, not indeed in the sense of conscious choice for no Court is supposed to commit an error knowing it to be such, but in the sense that the Court meant to omit what was omitted'.
(22) It is clear from the decisions referred to above that an error committed by a Court would be only an error on its part which has to be rectified in proper proceedings by way of review or appeal, and it cannot be regarded as an accidental slip Or omission unless there is some evidence or a clear indication in the judgment that the Court had originally intended to provide or grant that which has been omitted. In the present case, the judgment was silent about the interest from the date of suit till date of realisation. The preliminary decree that was drafted was quite in conformity with the judgment. It is true that the provision for interest from the date of suit till the date fixed for redemption was obligatory on the part of the Court. But, the failure, to do that which was obligatory cannot be regarded as accidental merely because that which was omitted to be done was obligatory. The failure to make the provision for interest, even though obligatory, was still an error in the judgment and the decree, and cannot be assumed to be accidental unless there is evidence or some. indication in the judgment to show clearly that the learned Subordinate Judge had originally intended to make the provision for interest. There is no such evidence and, as already stated, there is nothing in the judgment to suggest that the learned Subordinate Judge had originally intended to make the provision for interest from the date of the suit till the date of realisation. Further, the words 'accidental slip or omission' imply that what was omitted was such as could be supplied without any mental process of a further consideration of and decision on facts and law. If such further decision on facts and law is necessary for supplying what was omitted, it cannot be regarded as an accidental slip or omission, and the omission can be rectified only in proceedings by way of review or appeal and not by amendment under section 152 of the Code of Civil Procedure. In the present case, it is true that the granting of interest from date of suit till the date fixed for redemption is obligatory. But, the rate at which the interest is to be allowed is a matter in the discretion of the Court. So also, the granting of subsequent interest till realisation and the rate at which it is to be granted are in the discretion of the Court. They involve a further menial process of consideration of the facts and circumstances in the case. The omission to grant interest pendente lite and subsequent interest cannot, thereforee, be said to be accidental within the meaning of section 152 of the Code of Civil Procedure, and there is thus no ground for interfering in revision with the order of the learned Subordinate Judge declining to amend the judgment and decree under the said section 152.
(23) Mr. Sethi relied upon the decisions in Devidas Khushalrao Deshmakh v. Yectmal Central Bank Limited 1956 Nag 239 State of Madhya Pradesh v. Manmohan Swaroop. : AIR1966MP270 , Annapa Ramanna v. Ponduri Sreeramulu. Air 1958 A.P. 768 . and Gurcharan Singh v. Subedar Sawan Singh I.L.R, 1953 Pun 333. In the case of Devidas Khushalrao (14) a decree was passed by the trial Court in a suit on the footing of a mortgage, and provision was made therein for interest till the date of realisation. On appeal, a Division Bench (Madholkar and Naik, JJ.) of the High Court of Nagpur modified the decree, but in doing so provided for payment of interest only up to the date fixed for redemption, and did not make any provision for payment of interest subsequent to the date fixed for redemption. On an application by the plaintiffs for making a direction in regard to the payment of interest subsequent to the date fixed for redemption, the learned Judges, observing that the omission was inadvertent, amended their judgment under section 152 of the Code of Civil Procedure by adding interest at 6 per cent per annum from the date fixed for redemption till realisation. The question as to whether an omission is accidental, as pointed out above, has to be considered on the facts and circumstances in each case. In the case of Devidas Khushalrao(11), the judgment which was sought to be amended was pronounced by the same learned Judges who heard and allowed the application for amendment, 'and they stated clearly in their order of amendment that the omission in their judgment to provide interest was inadvertent. They themselves being the Judges who pronounced the judgment sought to be amended, they knew what they had intended, and according to them the omission was inadvertent which is the same thing as accidental. On that finding that the omission was inadvertent or accidental, the judgment could be amended under section 152 of the Code of Civil Procedure, and the learned Judges directed the amendment. In the present case, the original judgment in the suit was of the same Subordinate Judge, Shri V. P. Bhatnagar, who has declined to amend the judgment and the preliminary decree on the ground that the amendment prayed for did not come within the ambit of section 152. In other words, the learned Subordinate Judge who pronounced the judgment in the suit was of the view that the omission was not accidental or inadvertent, and as such it is not for this Court sitting in revision to say that the omission in the judgment was accidental or inadvertent. Shri Sethi cannot, thereforee, derive any assistance from the decision of the High Court of Nagpur.
(24) In the case of the State of Madhya Pradesh (15), on a reference under section 18 of the Land Acquisition Act. the compensation for a land awarded by the Collector was enhanced by the Additional District Judge. Subsequently, on an application made for the purpose, the Additional District Judge directed that interest shall be paid on the compensation from the date of acquisition of the land till the date of payment. It is not clear from the facts set out in the judgment of the High Court on what ground the direction was added by way of amendment of the original order. The High Court, however, observed at page 272 that where a direction as to interest is inadvertently omitted, the decree or order may be amended under section 152 by adding an appropriate direction. The learned Judges further observed that it was obvious that the omission of the direction for payment of interest was inadvertent as section 34 of the Land Acquisition Act peremptorily provides for payment of interest on the amount of compensation, and there was noting in the original order of the Additional District Judge to indicate that he wanted to deprive the claimant of interest for any assigned reason, and that 'indeed, his (the Additional District Judge's) order, dated 7-2-1963 (the order making the amendment), clearly shows that it was a mere omission'. Apparently, there was some reason given by the Additional District Judge in his order, dated 7-2-1963, which showed that the omission was inadvertent. The said decision was thus based on the facts of that case and cannot be of any assistance to the petitioner in this case.
(25) In Annapa Ramannas's case(16) a suit for specific performance of an agreement to sell certain property and for possession of the said property was decreed, and the decree directed the dependents to execute a sale deed subject to the condition that the plaintiff should deposit into Court a sum of Rs. 1100.00 on or before 10-4-1950. But, the relief for possession was not provided in the judgment and the decree. The judgment and decree were affirmed in appeal and second appeal. The plaintiff then applied in the High Court for amendment of the judgment and the decree as affirmed by the High Court in second appeal by including therein the relief for possession of the property in question alleging that the omission to give relief for possession was due to an accidental omission. One of the contentions of the opposite party was that the decree was in accordance with the judgment and, thereforee, the proper course was to get the judgment reviewed and not to file an application turn its amendment. A Division Bench (K. Subbarao, C.J. and Kumarayya, J.) held that the application was only to correct an accidental omission made in the judgment as well as in the decree and Section 152. Civil Procedure Code empowered the Court to correct the mistake. A perusal of the judgment of the High Court shows that the learned Judges appear to have accepted the assertion of the plaintiff that the omission was accidental, and there was no discussion at all about the contention of the opposite party. On the view taken by the learned Judges that the omission in that case was accidental, it followed that the said omission could be rectified by amendment under section 152 of the Code of Civil Procedure, Mr. Sethi cannot, thereforee, derive any assistance from this decision also.
(26) In the case of Gurchurun Singh(17), a suit for possession of a 2./3rd share in ancestral lands mortgaged by the fathers of the plaintiffs on the ground that the alienations thereof were not binding on the plaintiffs for want of consideration and legal necessity, was decreed by the trial Court on payment of the whole of the consideration for the mortgage for which legal necessity had been proved. On appeal by the defendants to the Court of the District Judge, the decree was affirmed except with a slight modification with regard to the amount payable by the plaintiffs. The plaintiffs filed a second appeal in the High Court claiming possession of the entire lands on payment of the amount decreed. A Division Bench (Kapur and Soni, JJ.) of the High Court of Punjab held that the decree passed by the District Judge was contrary to the provisions of section 91 of the Transfer of Property Act, that the proper decree which should have been passed in plaintiffs' favor was that they would be entitled to redeem the whole on payment of the mortgage money which was found to be binding on them, that the failure of the lower Courts to pass such a decree really amounted to an accidental slip which could have been corrected under section 152 of the Code of Civil Procedure -because the decree passed by the District Judge as also by the Subordinate Judge was inconsistent with the provisions in section 91 of the Transfer of Property Act which is one of the cardinal principles of the law of mortgages. But, a perusal of the judgment shows that no contention, such as is raised in the present Civil Revision regarding the scope of the term 'accidental' was urged in Gurcharan Singh's case (17), and there was no consideration and discussion of the various decisions of Courts on the point. Moreover, the amendment to be made in the case was only to substitute a decree that the plaintiffs would be entitled to redeem the whole mortgage on payment of the mortgage money which was already found to be binding on them. It involved no further mental process of a consideration of facts and law. On the other hand, in the present case the granting of interest pendente lite and subsequent interest, as already explained above, involves a further mental process of consideration of facts and law as regard the rate at which the interest is to be allowed. and, as such, was not a mere rectification of an accidental slip or omission. thereforee, I consider that Mr. Sethi cannot derive any assistance from this decision 'also.
(27) For the above reasons, the Civil Revision fails and is dismissed, but in the circumstances without costs.