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2024 Supreme(J&K) 60

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
JAVED IQBAL WANI, J.
Sakshi Khurana, D/o. Lt. Rohin Khurana - Appellant
Versus
Raj Kumar, S/o Sh. Teerath Ram and Ors. - Respondents
CM(M) No. 180 of 2023, CM No. 5880 of 2023, Cav No. 1672 of 2023
Decided On : 15-03-2024

Advocates Appeared:
For the Appellant : Mr. Sachin Gupta.
For the Respondents: Mr. Sunil Datt Shama.

The main legal point established in the judgment is that the power to correct clerical or arithmetical mistakes in judgments, decrees, or orders under Section 152 of the Code of Civil Procedure can only be exercised after a judgment, decree, or order has been passed or made, and the general power to amend any defect or error in any proceeding in a suit under Section 153 applies to pending proceedings. The court emphasized the limitations of these provisions and the requirement for pending proceedings before exercising such powers.

Headnote:
Article 227 - Jurisdiction - Code of Civil Procedure, Section 152, Section 153 - The court discussed the provisions of Section 152 and Section 153 of the Code of Civil Procedure, emphasizing the power of the court to correct clerical or arithmetical mistakes in judgments, decrees, or orders, and the general power to amend any defect or error in any proceeding in a suit. The court highlighted the requirement for the court to be satisfied that the order or decree contains or omits something which was intended to be otherwise before exercising the power under Section 152. It also emphasized that Section 153 applies to pending proceedings, while Section 152 applies after a judgment, decree, or order has been passed or made. The court concluded that the executing court had erred in entertaining the application for correction of the judgment and decree, as the power to make such corrections could not have been exercised in the absence of pending proceedings and in light of the fact that the judgment and decree had been challenged in the 1st appellate court and the civil 2nd appeal. The court set aside the impugned order.
Fact of the Case:
The respondent filed a suit for ejectment of a premises against the petitioner's grandfather, which was decreed by the trial court. The judgment and decree were challenged in the 1st appellate court and a civil 2nd appeal, which was dismissed for non-prosecution. The respondent sought an amendment to the judgment and decree for correcting the location of the suit property, which was allowed by the executing court. The petitioner, as successors-in-interest of one of the defendants, challenged the impugned order invoking Article 227 of the Constitution of India.
Finding of the Court:
The court found that the executing court had erred in entertaining the application for correction of the judgment and decree, as the power to make such corrections could not have been exercised in the absence of pending proceedings and in light of the fact that the judgment and decree had been challenged in the 1st appellate court and the civil 2nd appeal. The court set aside the impugned order.
Issues: The main issue was whether the executing court had the jurisdiction to entertain the application for correction of the judgment and decree, considering the provisions of Section 152 and Section 153 of the Code of Civil Procedure.
Ratio Decidendi: The court held that the executing court had erred in entertaining the application for correction of the judgment and decree, as the power to make such corrections could not have been exercised in the absence of pending proceedings and in light of the fact that the judgment and decree had been challenged in the 1st appellate court and the civil 2nd appeal.
Final Decision: The petition was allowed, and the impugned order was set aside.

ORDER :

1. Supervisory jurisdiction of this Court enshrined under Article 227 of the Constitution of India is being invoked by the petitioner for setting aside order dated 14.09.2013 (for short ‘the impugned order’) passed by the court of 1st Additional Munsiff (Forest Court), Jammu (for short ‘the trial court’).

2. The facts giving rise to the filing of the instant petition would reveal that the respondent No. 1 herein, filed a suit for ejectment of a premises compromising of one shop in the ground floor, four rooms, store, kitchen, bathroom and veranda on the first floor of a building situated at Mohalla Raghunath Pura, Jammu, initially against the grandfather of the petitioner herein, namely, Kartar Singh Khurana.

3. During the pendency of the suit, the said Kartar Singh Khurana died whereupon his legal heirs including the father of the petitioner herein came to be substituted and impleaded as defendants.

4. The suit came to be decreed by the trial court in terms of the judgment and decree dated 30.11.2012, the operative portions of which judgment and decree being relevant herein are extracted and reproduced hereunder:-

“Judgment: In view of the detailed findings returned on issues no. 3 to 7 the suit of the plaintiff deserves to be decreed which is accordingly decreed with cost whereby defendants are ordered to be evicted from the suit premises wholly described in the body of the plaint for further decree of mandatory injunction for payment of arrears of rent of Rs. 1800/- up to the date of filing of suit and future rent @ the rate of Rs. 150/- till vacation of suit premises.”

“Decree: Defendants are ordered to be evicted from the suit premises wholly described in the body of the plaint with further decree of mandatory injunction for payment of arrears of rent of Rs 1800/- up to the date of filing of the suit and future rent @ Rs 150/- till vacation of the suit premises.”

5. The judgment and decree dated 30.11.2012 supra came to be called in question in the 1st appeal filed by the defendants in the Court of Principal District Judge, Jammu on 29.03.2013, which appeal came to be dismissed on 21.02.2017 upholding the judgment and decree passed by the trial court, whereafter a civil 2nd appeal as well came to be filed by the defendants before this Court being C2A No. 15/2017 which appeal, too came to be dismissed, however, for non prosecution on 26.04.2018.

6. The plaintiff/respondent No. 1 herein thereafter filed an execution petition before the court of Munsiff, Jammu, that is the Court, which passed the judgment and decree, supra, however, the said execution petition came to be transferred to the court of 1st Additional Munsiff (Forest Magistrate), Jammu (for short ‘the executing court’) on account of inability expressed by the Presiding Officer of the said court.

7. During the course of the pendency of the execution petition supra before the executing court, the plaintiff/respondent No.1 herein moved an application seeking amendment of judgment and decree dated 30.11.2012 (supra) for effecting corrections to the location/area of the suit property to be as Partap Garh, Jammu instead of Raghunath Pura, Jammu, on the premise that the said error about the location of the suit property had crept in the judgment and decree accidently as also in the suit filed by respondent No. 1 herein wherein the said judgment and decree came to be passed.

8. The application supra came to be opposed by the defendants/non applicants by filing objections thereto, inter alia, on the premise that the application is not maintainable and that the corrections sought in the application are not warranted as the court, while passing the judgment and decree, referred to the description and location of the suit property as had been provided by the plaintiff /respondent No. 1 herein in the plaint and also for the reason that the judgment and decree stands upheld in the appeal by the court of Principal District Judge, Jammu in terms of judgment dated 21.02.201

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