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1973 Supreme(Raj) 76

Rajasthan High Court
Lodha, J.
Gulab Bai - Appellant
Versus
Ram Pratap - Respondents
S.B. Civil Revision No. 525 of 1972
Decided On : March 28, 1973

Advocates Appeared:
S.N. Chhangani, for Petitioner; D.S. Shishodia, for Non-petitioner

Headnote:Civil P.C., Sec. 152—Accidental—Failure to award interest not accidental—Decree cannot be amended so as to award interest.

       The key word in the relevant phrase is "accidental" and it qualifies an "omission" also. Thus the procedure provided in the rule cannot be used to correct omissions however erroneous, unless they are accidental. Now the judgment and decree in question make it abundantly clear that the Munsiff who passed the decree did not award any interest. S. 34(2) C.P.C. provides that "where such a decree is silent with respect to the payment of further interest on such principal sum as aforesaid, from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest. The omission may be erroneous but the proper remedy for the aggrieved party lies either in filing an appeal or applying for review in case the application for review is competent, but an application u/s. 152 C.P.C. does not lie for the purpose. (Paras 5 and 7)

LODHA, J.—This is a revision by the defendant from the order of the Munsiff, Kota dated 19-8-1972 in Civil Original Case No. 290 of 1970, by which the learned Munsiff, allowed the application moved by the plaintiff-respondent under sec. 152 Civil P. C. and directed that the preliminary decree be amended and a direction be added in the decree that the plaintiff is entitled to get interest at the rate of 24 per cent per annum from 1-10-1969 (date of the suit) to 11-1-1971 (date of preliminary decree) and at the rate of 6 per cent per annum from 12-1-1971 till the realisation of the, amount.

2. The facts leading to the proceedings out of which this revision arises are not in dispute. The plaintiff-respondent Rampratap filed the suit for recovery of Rs. 3600/-along with costs and interest against the defendant petitioner and prayed that in case the defendant did not pay the amount within such period as may be fixed by the court, a direction may be given for sale of the mortgaged property. After trial the learned Munsiff, Kota passed a preliminary decree on 11-1-1971 under O. 34, r. 4 CPC for a sum of Rs. 3600/-, and it was further ordered that the defendant shall pay into the court the said amount by 30-4-1971 and in default of payment as aforesaid the plaintiff may apply to the court for a final decree for the sale of the mortgaged property.

3. On account of failure of the defendant to pay the amount and on an application having been moved by the plaintiff in this connection, a final decree was passed on 12-1-1972 directing that the mortgaged property be sold and out of the sale proceeds the mortgage money shall be first paid to the plaintiff and if there remains any balance thereafter the same may be paid to the defendant. After about 3 months of the passing of the final decree, the plaintiff made an application under sec. 152 G. P. C. on 10-4-72 that the court while passing the preliminary decree had inadvertently omitted to award interest pendente lite and future interest on the suit amount as provided under O. 34, rr. 4 and 11 C.P.C. and consequently the preliminary decree may be corrected by introducing therein a direction for payment of interest pendente lite and future interest, This application was opposed by the defendant petitioner on the ground that no such amendment could be made in the decree under sec. 151 G. P. C. The defendants objection was however over ruled and the decree was ordered to be corrected as prayed. Aggrieved by the order of the learned Munsiff the defendant has come in revision to this court.

4. It may be pointed out that the learned Munsiff has not at all addressed himself to the question whether the type of prayer made by the plaintiff for amending the decree fell within the scope of sec. 152 C.P.C. Under sec. 152 Civil P. C. a clerical or arithmetical mistake or an error arising from an accidental slip or omission may be corrected by the court. The present is not a case where the decree originally passed was at variance with the judgment in which case the court would have inherent power to bring the decree in conformity with the judgment so as to express its true intention, but where as here, the decree had been drawn up so as to completely agree with judgment as required by O. XX, r. 6 C.P.C., it could not be changed without altering the judgment. It is specifically provided in O. XX, r. 3 C.P.C. that "when once signed, the judgment shall not afterwards be altered or added except as provided by sec. 152 or on review. Sec. 152 Civil P.C. reads as under :

"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."

5. No clerical or arithmetical mistake was suggested in the present case. The only question therefore is whether there is any accidental slip or omission, giving rise to an error in the judgment and decree of the











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