IMPORTANT POINT
A court cannot modify a decree for costs after it has been executed and satisfied, as it becomes functus officio.

JUDGMENT :

Krishna Rao, J.

1. Plaintiff has filed the present application for recalling a part of the Judgment and Decree passed by this Court on 8th December, 2022 in C.S. No. 133 of 2019 and to allow the plaintiff to pursue its claim for interest and cost in accordance with law or in the alternative, the judgment and decree be amended or modified to include a direction on the defendant to pay costs of Rs.40,84,981/- to the plaintiff in terms of Section 35 read with Section 35A of the Code of Civil Procedure, 1908.

2. The plaintiff had filed the suit being C.S. No. 133 of 2019 praying for a decree for Rs.83,46,507/- along with interest at the rate of 17% per annum and also prayed for cost. In the suit, the plaintiff has filed an application under Chapter XIIIA of the Original Side Rules of this Court for final judgment and decree. Defendant has contested the said application. By a judgment dated 8th December, 2022, this Court disposed of the said application holding that there is nothing which the defendant has been able to demonstrate that there is any plausible defence to the unimpeachable claim of the plaintiff. This court passes decree on admission directing the defendant to pay Rs.83,46,507/- to the plaintiff and suit along with application were disposed of.

3. After the Judgment and Decree passed by this Court, the plaintiff has filed an execution case before the Executing Court being Execution Case No. 220 of 2023 against the defendant. Inspite of several orders passed by the Executing Court, the judgment debtor failed to appear and accordingly warrant of arrest issued against the judgment debtor. The judgment-debtor entered appearance and filed affidavit of assets. The judgment-debtor has paid the decreetal amount of Rs.83,46,507/- to the decree holder and the decree holder has received the said amount. Before the Executing Court, the decree holder has claimed cost by referring Section 35 and 35A of the Code of Civil Procedure, 1908 but the Executing Court has not entertained the claim of the decree holder on the ground the Trial Court has not granted cost to the decree holder. Now, the decree holder has filed the present application.

4. Mr. Rajarshi Dutta, Learned Advocate representing the plaintiff submits that the plaintiff has prayed for interest on the principal amount at the rate of 17% per annum until realisation and also cost as the disputes are commercial in nature but this Court has not considered the prayer of the plaintiff for grant of interest and cost. He submits that this Court had no occasion to consider or deal with the claim of interest and cost as this Court was only considering the application for summary judgment for sum of Rs.83,46,507/- and thus the judgment and decree is required to be recalled so as to enable the plaintiff to pursue the claim of interest and cost.

5. Mr. Dutta submits that in order to do substantiate justice, it is clear that the courts have inherent power to amend or vary decree so as to bring then in accordance with law even if they do not fall strictly within the purview of Section 152 of the Code of Civil Procedure, 1908. He submits that mistake or error in the judgment is clearly unintentional as this Court was considering only the application for summary judgment, where no additional relief for interest and cost was claimed. He submits that it is unusual that the Court while disposing of an application for summary judgment, would dispose of the suit permanently thereby taking away the right of the plaintiff to pursue its claim for other reliefs and in the present case, the plaintiff has suffered as this Court has not passed any judgment and decree with respect to interest and cost.

6. Mr. Dutta submits that the present suit is commercial in nature and has referred Section 35 of the Code of Civil Procedure, 1908 and submitted that under the said provision, the Court has the discretion to impose cost upon the defendant and if cost is not awarded, reasons is to be given in writing