IMPORTANT POINT
An application for clarification or modification touching the merits of the matter would not be maintainable.

ORDER

An application purported to be for clarification and/or modification of a judgment and order dated 9th October, 2003 has been filed by the respondents Nos. 1 to 6 of the Appeal contending that certain factual errors had crept in the said judgment which could not be pointed as they were not present at the hearing of the appeal. Two apparent factual errors have been pointed out at page No. 2 and at page No. 6 of the judgment wherein the date of the consent decree passed in F.A.No. 450 of 1981 has been mentioned as 22.5.1988 in stead and place of 22.5.1998 and the said consent decree was passed by a Single Judge in stead of a Division Bench of the High Court.

2. It has further been pointed out that although this Court noticed that the appellant herein was not a party to the First Appeal before the High Court but the same had wrongly been considered to be a ground for passing the impugned judgment as they could not have been impleaded. It has further been urged that the consent decree passed in F.A.No. 450 of 1981 by the High Court having been set aside the same was non-existent in the eyes of law. The applicants furthermore averred that this Court has wrongly relied upon a stray statement made by the High Court to the effect that "the auction sale was set aside by reason of the judgment dated 21.5.1992 by the High Court inter alia directing that the following remedy be taken recourse to by the applicant".

3. Drawing this Court s attention to second paragraph of page 6 of the judgment, it is contended that the statements made to the effect that the "High Court committed a manifest error in modifying the judgment and order dated 22.6.1981 by passing the judgment dated 22.5.1998 in F.A.No. 450 of 1981" are wrong.

4. Various other contentions have also been raised touching upon the merit of the judgment.

5. Mr. P.S. Mishra, learned senior counsel appearing on behalf of the appellant would submit that his client would be satisfied if this Court takes notice of the errors in the pleadings of the appellant as a result whereof the said mistakes have crept in the judgment and, thus, the applicants (Respondent Nos. 1 to 6 in the appeal) should be given the liberty to place the correct facts before the High Court. Mr. Mishra would contend that such a direction can be issued by this Court in ex debito justitiae. Reliance, in this regard, has been placed on Samarendra Nath Sinha & Anr. Vs. Krishna Kumar Nag [(1967) 2 SCR 18], B. Shivananda Vs. Andhra, Bank Ltd. and Another [(1994) 4 SCC 368] and Jayalakshmi Coelho Vs. Oswaid Joseph Coelho [(2001) 4 SCC 181].

6. Dr. G.C. Bharuka, learned senior counsel appearing on behalf of the applicants, on the other hand, would submit that this application for clarification and/or modification being in effect and substance an application for review is not maintainable in law. Reliance has been placed on Delhi Administration Vs. Gurdip Singh Uban and Others [(2000) 7 SCC 296] and Common Cause Vs. Union of India and Others [(2004) 5 SCC 222].

7. Before adverting to the rival contentions, as noticed hereinbefore, we may notice the relevant provisions of the Supreme Court Rules, 1966.

Order XIII, Rule 3 reads as under :

"3. Subject to the provisions contained in Order XL of these rules a judgment pronounced by the Court or by a majority of the Court or by a dissenting Judge in open Court shall not afterwards be altered or added to, save for the purpose of correcting a clerical or arithmetical mistake or an error arising from any accidental slip or omission."

Order XL and Order LXVII, Rule 6 read as under:

"XL. 1. The Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII, rule 1 of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record.

3. Unless otherwise ordered by the Court, an application for review shall be disposed of by circulation without any oral argument