Full Judgment
1. In both the revision petitions, defendant is the revision petitioner.
2. C.R.P.No.1064 of 1997 arises from O.S.No.1494 of 1984 on the file of District Munsif Court, Villupuram. In that case, decree itself was passed on 22.6.1985 against petitioner and that has become final. Alleging that there is mistake in drafting decree, an application was filed in LA.No.909 of 1996 by plaintiff, which was allowed by lower Court.
3. Plaintiff in that case is United Commercial Bank, now a Government of India Undertaking. Suit was filed for recovery of Rs.8,247.65 with future interest. It is seen that defendant has hypothecated certain machineries as security for the amount borrowed and when judgment was pronounced, defendant was directed to pay the amount within specified time and in case he fails to do so, Judgment further provided that the mortgaged property could be sold in auction. In case decree amount could not be satisfied in spite of sale of mortgaged properties, para 5 of the Judgment permitted the Bank to apply for personal decree against defendant for the balance amount.
4. Para 5 of the decree reads thus,
'And it is hereby further ordered and decreed that if the money realised by such as a shall not be sufficient for payment in full of the amount payable to the plaintiff an aforesaid, the plaintiff shall be at liberty (where such remedy is open to him under the term of his mortgage and is not barred by any law for the time being in force) to apply for a personal decree against the defendants for the amount of the balance, and that the parties are at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit.
5. It could be seen that no amount could be recovered by sale of mortgaged properties since machineries are not available. It has already been removed from the place. Plaintiff naturally had to resort only to personal decree. Unfortunately Decree did not provide for personal decree. An application was filed by plaintiff to amend the decree so as to incorporate a clause directing defendants to pay jointly and severally the above said amount of Rs.8,247.65 with subsequent interest and costs with half yearly rest till realisation of the amount.
6. The said application was seriously opposed on the ground that when the relief is barred by time, the same cannot be overcome by filing application for amendment of decree. It is also contended that there is no clerical or typographical mistake in the decree and the remedy of plaintiff is only to file an appeal.
7. By the impugned order lower court allowed the amendment.
8. I heard the learned counsel on both sides.
9. The only question that require consideration is whether the impugned order is liable to be interfered with in this revision petition under Section 115 of Code of Civil Procedure.
10. In Samarendra v. Krishna Kumar, : [1967]2SCR18 their Lordships considered the scope of Sections 151 and 152 and the purpose behind those provisions. In paragraph 11 of the judgment, their Lordships held thus.
'Now, it is well settled that there is an inherent power in the court which passed the judgment to correct a clerical mistake or an error arising from anaccidental slip or omission and to vary its judgment so as to give effect to its meaning and intention.
'Every Court', said Bowen L.J. in Mellor v. Swire, 1885 (20) Ch.D. 239, 'has inherent power over its own records so long as those records are within its power and that it can set right any mistake in them. An order even when passed and entered may be amended by the Court so as to carry out its intention and express the meaning of the court when the order was made.
In Janakirama Iyer v. Nilakanta Iyer, : AIR 1962 SC633 the decree as drawn up in the High Court had used the words 'mesne profits' instead of 'net profits'. In fact the use of the words 'mesne profits' came to be made probably because while narrating the facts, these words were inadvertently used in the judgment This court held that the use of the words 'mesne profits' in the context was obviously the result of inadvertence in view of the fact that the decree of the Trial Court had specifically used the words 'net profits' and therefore the decretal order drawn up in the High Court through mistake could be corrected under Sections 151 and 152 of the Code even after the High Court had granted certificate and appeals were admitted in this court before the date of the correction. It is true that under O.20, R.3 of the Code once a judgment is signed by the Judge it cannot be altered or added to but the rule expressly provides that a correction can be made under Section 152.
The Rule does not also affect the court's inherent power under Section 151. Under Section 152, clerical or arithmetical mistakes in judgment decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the court either on its own motion or on an application by any of the parties. It is thus manifest that errors arising from an accidental slip can be corrected subsequently not only in a decree drawn up by a ministerial officer of the court but even in a judgment pronounced and signed by the court.' (Italics supplied)
11. In a recent decision of the Honourable Supreme Court reported in Dwaraka Das v. State of Madhaya Pradesh, : [1999]1SCR524 also a similar question came for consideration and in para 6, it is held thus,
'Section 152, CPC provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistakes by the court of its ministerial actions and does not contemplate of passing effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, the court or the tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. The corrections contemplated are of correcting only accidental omissions or mistakes and not all omissions and mistakes which might have been committed by the court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of section 152 for which the proper remedy for the aggrieved party is to file appeal or review application. It implies that the section cannot be pressed into service to correct an omission which is intentional, however erroneous that may be. It has been noticed that the courts below have been liberally construingand applying the province of Sections 151 and 152 of the CPC even after passing of effective orders in the lis pending before them. No court can under the cover of the aforesaid sections, modify, alter or add to the terms of its original judgment, decree or order. In the instant case, the trial court had specifically held the respondent State liable to pay future interest only despite the prayer of the appellant for grant of interest with effect from the date of alleged breach which impliedly meant that the Court had rejected the claim of the appellant insofar as pendent lite interest was concerned. The omission is not granting the pendent lite interest could not be held to be accidental omission or mistake as was wrongly done by the trial court vide order dated 30.11.1973. The High Court was, therefore, justified in setting aside the aforesaid order by accepting the revision petition filed by the State.'
12. In this case applying the above principles, we have to consider whether there is any clerical mistake. Law is well settled that a decree is to be drawn up in accordance with judgment. On a perusal of judgment and decree it cannot be disputed that the decree drafted is not in accordance with judgment. If the decree is at variance to the judgment it follows that the records of the Court are not correct and the same have to be corrected. Section 152 of Code of Civil Procedure is based on two important principles (1) based on the maxim that an act of court shall prejudice no party and (2) Courts have a duty to see that their records are true and they represent the correct state of affairs.
13. In this case, even though there is a provision for personal decree in the Judgment, the same is omitted in the decree. The same is sought to be corrected under Section 151 and 152 of CPC. While passing the judgment the intention of the Court is to give personal decree against defendant. When that is omitted in the decree, it follows that the records of the Court has really prejudiced the plaintiff. The order of the lower court do not call for any interference and the revision petition is dismissed.
14. C.R.P.No.3088 of 1999 arises from another suit filed against very same defendant by the very same bank. There the property of Judgment debtor was brought for sale and sold in auction. Petitioner moved an application under Order 21 Rule 90 of CPC and also moved an application that he may be exempted from furnishing security. The same was rejected. That was the subject matter of revision in C.R.P.No.3088 of 1998.
15. I set aside the order and in para 7 of the Judgment I held that petitioner cannot get any exemption from furnishing security but he must be given opportunity to furnish the security. In para. 7 of the order I have stated thus,
'But, subsequent procedure adopted by the lower Court in dismissing the application under Order 21, Rule 90 is not correct. It is settled law that the judgment debtor is to be given reasonable opportunity to furnish security I direct the petitioner to furnish security for Rs.43,050 either in cash or in the nature of immovable property to the satisfaction of lower court within a periodof four weeks from today. In case, the security is not furnished by that time, the application to set aside the sale will stand dismissed. If security furnished to the satisfaction of the Executing Court under Order 21, Rule 90 application shall be entertained and final orders will be passed on that application within one month thereafter. The lower court is also directed to report compliance to this court.'
16. The order was pronounced on 27.7.1999. Petitioner filed an application for getting certified copy on 28.7.1999 and copy was made available to him on 25.8.1999. On the very next day i.e., on 26.8.1999 he executed a draft bond before the lower court. By the time the application was filed time granted by this court has already expired. There is a delay of three days. In view of the delay, lower court expressed its inability to receive security and the same was dismissed. Consequently, application under Order 21, Rule 90 was also dismissed. Challenging the same C.R.P.3088 of 1999 is filed.
17. Notice of motion was ordered and learned counsel also entered appearance. After hearing counsel on both sides I feel that order of lower court requires interference. As stated earlier, my order is dated 27.7.1999. petitioner moved an application for getting copy on the next day itself and copy was made available to him only on 25.8.1999. On the next day i.e., on 26.8.1999 itself security was furnished. I feel that petitioner was vigilant in furnishing security and consequently he is also entitled to extension of time for furnishing the same.
18. The time to furnish security is extended till 26.8.1999 i.e., the date on which he furnished security. I direct lower court to consider whether security furnished is sufficient and if so, proceed with the same in accordance with law. Lower Court will pass orders after giving reasonable opportunities to both parties and pass final orders.
19. In the result, C.R.P.No.1064 of 1997 is dismissed and C.R.P. No.3088 of 1999 is disposed of as above. Connected C.M.Ps. are closed. Nocosts.