Ramprabhu Gopinath Kapse v. Shevantabai Baburao Kapse

1. Rule. Rule made returnable forthwith and with the consent of the learned Counsel for the parties, heard finally.

2. The petitioner – original defendant takes exception to an order dated 26th October, 2018 passed by the learned District Judge, Barshi, on an application filed under Section 152 of the Code of Civil Procedure, 1908 (“the Code”) for amendment in the judgment and decree passed in Regular Civil Appeal No.204 of 1986, whereby the said application was allowed and paragraph No.2 of the judgment and operative part of the decree were ordered to be corrected.

3. Shorn of unnecessary details, the background facts leading to this petition can be stated as under: SUBHASH KULKARNI 3.[1] The respondent instituted a suit for recovery of possession of the properties bearing Block Nos.593 and 535 situated at Javalgaon, Vairag, Taluka Barshi and mesne profit. The suit properties were described as Block No.593 and Block No.535 with a suffix “1/2 share”. By a judgment and order dated 30th January, 1986, the learned Civil Judge was persuaded to dismiss the suit returning a finding that the defendant proved that he had perfected his title to the suit land by way of adverse possession. 3.[2] Being aggrieved, the plaintiff preferred an appeal being Civil Appeal No.204 of 1986. By a judgment and order dated 25th September, 1990, the learned District Judge allowed the appeal and reversed the decree passed by the trial court. The learned District Judge directed as under: “….. The defendant – respondent is directed to give possession of the lands bearing Block Nos.593 and 535 of village Javalgaon, Taluka Barshi to the plaintiff – appellant. For mesne profits, separate enquiry under 0.20 rule 12 (c) C.P.C. is directed.” 3.[3] The defendant preferred second appeal being SA/618/1990. By an order dated 7th February, 1991 this Court dismissed the second appeal opining that the judgment passed by the first Appellate Court did not suffer from any legal infirmity. 3.[4] In the execution proceedings, the defendant filed an application contending that the decree was not executable. The plaintiff had instituted the suit for recovery of ½ portion of Block No.535 and Block No.593 and the decree passed by the First Appellate Court was for the entire Block Nos.593 and 535. Thus, the decree being a nullity, it was not executable. The execution proceedings were disposed of by an order dated 14th September, 2015. 3.[5] The plaintiff, thereafter, preferred an application to amend the judgment and decree, purportedly under Section 151 read with Section 152 of the Code. Two amendments were sought. Firstly, the area of Block No.593 was sought to be corrected to 1H. 05Are and, secondly, ½ portion was claimed out of Block No.535. The defendant resisted the application. 3.[6] By the impugned order, the learned District Judge was persuaded to allow the application observing, inter alia, that the mistake in the operative part of the decree passed in RCA/204/1986 appeared to be an accidental error. If the judgment is read as a whole, the learned District Judge intended to pass a decree for possession in respect of entire Block No.593 and ½ portion of Block No.535. Inadvertently, in the operative part, the possession of Block Nos.593 and 535, as a whole, was ordered to be delivered. It was, therefore, necessary to correct the area in respect of Block No.593 and restrict the decree to the ½ portion of Block No.535. The learned District Judge directed as under: “The defendant – respondent is directed to give possession of land admeasuring 1H 05R bearing B.No.593 and ½ share out of 2H 82R bearing B.No.535 of village Javalgaon, Taluka Barshi to the plaintiff – appellant.”

4. Being aggrieved, the defendant has invoked the writ jurisdiction.

5. Mr. Kulkarni, the learned Counsel for the petitioner, urged that the corrections in the decree directed to be carried out by the learned District Judge are clearly beyond the scope of amendment permissible under Section 152 of the Code. The learned District Judge has oversimplified the matter by observing that the error occurred on account of accidental slip. No other reason has been ascribed. Taking the Court through the description of the property in the plaint Mr. Kulkarni urged with tenacity that the qualification “1/2 portion” governed both Block Nos.593 and 535. That was the plain and simple prayer of the plaintiff. Thus, the decree passed by the First Appellate Court in RCA/204/1986 for the entire Block Nos.593 and 535 was clearly unexecutable and was lawfully so ordered by the Executing Court. By the impugned order, the learned District Judge, thus, could not have corrected the said judgment and decree by resorting to the provisions contained in Section 152 of the Code.

6. Mr. Kulkarni further submitted that there was a serious doubt about the proprietary title of the predecessor-in-title of the plaintiff over entire Block Nos.593 and 535. To this end, Mr. Kulkarni took the Court through the observations in the judgment of the First Appellate Court, especially paragraph 15. As there was a serious dispute about the title of the husband of the plaintiff over entire Block Nos.593 and 535, the learned District Judge could not have ordered the correction in the decree without holding a proper enquiry. In the least, the issue is required to be tried and adjudicated. Thus, the impugned order deserves to be quashed and set aside, submitted Mr. Kulkarni.

7. In opposition to this Mr. Kumbhkoni, the learned Counsel for the respondent, submitted that the learned District Judge was well within his rights in ordering the correction in the judgment and decree. At no point of time, there was any cloud over the title of the husband of the plaintiff over entire Block No.593. The documents before the Court clinched the issue about the exclusive ownership of the predecessor-in-title of the plaintiff over Block No.593. Even, the trial court had returned the finding that the plaintiff had exclusive title over the suit property. But had dismissed the suit on an incorrect premise that the defendant had perfected his title over the suit property by way of adverse possession. An inadvertent omission in the decree passed by the First Appellate Court to clarify that possession of “½ portion of Block No.535” was to be delivered has resulted in a delay of almost 35 years in the execution of the decree. The learned District Judge has, thus, correctly exercised the jurisdiction to correct the judgment and decree, urged Mr. Kumbhkoni.

8. Reliance was placed by Mr. Kumbkoni on the judgments of this Court in the cases of Rahul Trading Corporation and another vs. Bernard Anthony Pereira and others[1] and Laxman Ramji Taske (since deceased) through LR Saraswati Laxman Taske and ors. vs. Kewalabai Kisan Pawade and ors.2.

9. In the wake of the facts of the case and the rival submissions canvassed across the bar, the question as to whether the District Court could have amended the judgment and decree by invoking the power under Section 152 of the Code, wrenches to the fore. Thus, to start with, it may be 1 2023 (2) All M.R. 659. 2 (2017) 6 Mh.L.J. 224. apposite to appreciate the nature, extent and limits of the powers of the Court to correct a judgment, decree or order. Section 152 of the Code reads as under: “Section 152. Amendment of judgments, decrees or orders. — 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.”

10. On a plain reading of the text of Section 152, it becomes evident that the Court is empowered to correct the clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. The use of the expression ‘may’ emphasises that the power is discretionary and, in a sense, enabling in nature. Likewise, the use of the expression, “at any time” indicates that the stage of the proceeding does not matter. Such a correction can be made at any time. The use of the expression “either of its own motion or on the application,” underscores the legislative intent that it was necessary to empower the Court to correct its record suo motu or on the application of any of the parties.

11. The aforesaid expressions of wide amplitude, however, do not imply that the power conferred on the Court under Section 152 is in the nature of review. The corrections, which can be legitimately made by the invoking Section 152 are only those which fall in the category of, “clerical or arithmetical mistakes” or “errors arising from accidental slip or omission”. Any correction, which touches upon merits of the case or adds to or substracts from the relief that has been denied or granted, as the case may be, falls beyond the purview of Section 152 of the Code. On a true construct, the avowed purpose of vesting of the general power in the Court to amend its judgment, decree or orders, is to ensure that the act of the Court does not cause prejudice to the parties. A reference to few judgments of the Supreme Court would illuminate the path.

12. In the case of State of Punjab vs. Darshan Singh[3] the Supreme Court expounded the nature and import of the power contained in Section 152 of the Code as under: “12. Section 152 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 same becomes final subject to any further avenues of remedies provided in respect of the same and the very Court or the tribunal cannot, on mere change of view, is not entitled to vary the terms of the judgments, decrees and orders earlier passed except by means of review, if statutorily provided specifically therefor and subject to the conditions or limitations provided therein. The powers under Section 152 of the Code are neither to be equated with the power of review nor can be said to be akin to review or even said to clothe the Court concerned under the guise of invoking after the result of the judgment earlier rendered, in its entirety or any portion or part of it. The corrections contemplated are of 3 2004(1) SC 328. 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 as if it is looking into it for the first time, for which the proper remedy for the aggrieved party if at all is to file appeal or revision before the higher forum or review application before the very forum, subject to the limitations in respect of such review.” (emphasis supplied)

13. In the case of Jayalakshmi Coelho vs. Oswald Joseph Coelho[4] the legal position was enunciated as under: “13. So far legal position is concerned, there would hardly be any doubt about the proposition that in terms of Section 152 C.P.C., any error occurred in the decree on account of arithmetical or clerical error or accidental slip may be rectified by the court. The principle behind the provision is that no party should suffer due to mistake of the court and whatever is intended by the court while passing the order or decree must be properly reflected therein, otherwise it would only be destructive to the principle of advancing the cause of justice…..

14. As a matter of fact such inherent powers would generally be available to all courts and authorities irrespective of the fact whether the provisions contained under Section 152 C.P.C. may or may not strictly apply to any particular proceeding. In a matter where it is clear that something which the Court intended to do but the same was accidentally slipped or any mistake creeps in due to clerical or arithmetical mistake it would only advance the ends of justice to enable the Court to rectify such mistake. But before exercise of such power the Court must be legally satisfied and arrive at a valid finding that the order or the decree contains or omits some thing which was intended to be otherwise that is to say while passing the decree the court must have in its mind that the order or the decree should be passed in a particular manner but that intention is not translated into the decree or order due to clerical, arithmetical error or accidental slip. The facts and circumstances may provide clue to the fact as to what was intended by the court but unintentionally the same does not find mention in the order or the judgment or something which was not intended to be there stands added to it. The power of rectification of clerical, arithmetical errors or accidental slip does not empower the court to have a second thought over the matter and to find that a better order or decree could or should be passed.. There should not be re-consideration of merits of 4 2001(2) SC 181. the matter to come to a conclusion that it would have been better and in the fitness of things to have passed an order as sought to be passed on rectification. On a second thought court may find that it may have committed a mistake in passing an order in certain terms but every such mistake does not permit its rectification in exercise of Courts inherent powers as contained under Section 152 C.P.C. It is to be confined to something initially intended but left out or added against such intention.

14. In K. Rajamouli vs. A.V.K.N. Swamy[5], where the High Court has granted interest pendente lite, which was not awarded by the trial court, the Supreme Court held that the High Court could not have resorted to Section 152 of the Code to award pendente lite interest. The observations of the Supreme Court in paragraph 6 are instructive and hence extracted below: “6. Section 152 provides that a clerical or arithmetical mistake 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. The question, therefore, arises is whether omission of pendente lite interest to the decree by the trial Court was an accidental or clerical error. In the case of Dwaraka Das v, State of M.P. and Am, [1999] 3 SCC 500, it was held that the omission in not granting the pendente lite interest could not be held to be accidental omission or mistake and therefore, neither the trial Court nor the appellate Court has power to award pendente lite interest under Section 152 of the Code of Civil Procedure. This decision is squarely applicable to the present case. In the present case, neither the arbitrators nor the trial court awarded pendente lite interest to the decree holder. The executing court also refused to grant pendente lite interest to the decree holder and the same was upheld by the High Court in the revision petition filed against the order of the executing court. However, the position would be different where the judgment of a court provides for pendente lite interest and decree omits to mention such interest. Such a mistake could be corrected under Section 152 CPC, The correct position of law is that a decree cannot add or subtract any relief except what has been provided in the judgment. But this is not the case here, Mr. 5 (2001) 5 Supreme Court Cases 37.