The proper exercise of jurisdiction and the requirement for notice to parties in amending decrees under Section 152 of C.P.C.

The civil revision petitioner is the second defendant in O.S.No.55 of 1988 on the file of the Sub Court, Sankagiri. In the said suit filed by the first respondent/Plaintiff Bank for hypothecation directing the defendants 1 to 3 to pay a sum of Rs.4,79,259/- with future interest at 13.5% per annum from the date of suit till date of payment towards the Term Loan, with a charge over the property described in the schedule and directing the sale of the hypothecated property in case of default of payment to be sold and the sale proceeds be applied for realization of the decretal amount and directing the defendants to pay a sum of Rs.1,99,907.05/-with future interest at 15% p.a. from the date of suit till date of payment towards cash credit loan with a charge over the property described in the schedule and in case of default of payment, directing the hypothecated property in movables described in the schedule to be sold and the sale proceeds be applied for realization of the decretal amount due under the cash credit loan amount and for cost, decree was passed by the trial Court on 26.09.1991.

2. An interlocutory application was filed by the first Respondent/Plaintiff Bank before the learned sub Judge, Sankagiri wherein it was inter alia averred that the suit was filed for recovery of money and create a charge over the hypothecated movables and there was no immovable collateral security obtained by the Bank at the time of advance of money to the defendants and there was also no prayer in the plaint to pass a preliminary mortgage decree on the immovable properties and that inadvertently a mistake crept-in while drafting the decree and that the decree was drafted as a preliminary mortgage decree and directed the decree holder to apply for final decree. In short, the first respondent/Plaintiff Bank in the interlocutory application has prayed for treating the decree as simple money decree by passing orders Suo Motto under section 152 of C.P.C. The said interlocutory application was received by the trial Court on 04.03.1997 and the said application in unnumbered stage was heard by the Court below on 15.09.1997 and orders were passed as follows:-

"Heard S.A. Shanmugam, Perused C.P.C. Commendaries 9th edition by W.W. Chitaley and V.B. Bakhale Volume II Pages 830, 838, 842, Amend the decree as Money decree."

3. Nearly after 5 years, 5 months and 7 days, the interlocutory application for amending the decree Suo Motto by the trial Court was filed under Section 152 of C.P.C. by the first Respondent/Plaintiff Bank.

4. It is the contention of the learned counsel for the Revision Petitioner/Second Defendant that the order passed by the learned Subordinate Judge, Sankagiri on 15.09.1997 in unnumbered application without ordering notice to the other side is illegal in the eye of law.

5. In this connection, it is pertinent to refer to Rule 32 of the Civil Rules of Practice, which enjoins as follows:-

"32. Proof of facts by affidavit:- Any fact required to be proved upon an interlocutory proceeding shall, unless otherwise provided by these rules, ordered by the Court, be proved by affidavit, but the judge may, in any case, direct evidence to be given orally; and thereupon the evidence shall be recorded and exhibits marked, in the same manner as in a suit and lists of the witnesses and exhibit shall be prepared and annexed to the judgment."

6. In the decision reported in (2006) 1 SCC 380), U.P.SRTC V. IMTIAZ HUSSAIN, it is observed by the Honourable Supreme Court as follows:-

"A. Labour Law – U.P. Industrial Disputes Act, 1947 (28 of 1947) – S.6(6) – Provision in, enabling to correct any clerical or arithmetical mistakes in the award, or errors arising therein from any accidental slip or omission – Scope – Held, it is similar to S.152 CPC – Restating the basis of and the limitations and principles applicable to S.152 CPC, held, they are applicable to S.6(6) of the U.P.Industrial Disputes Act as well – In the present case, employer SRT Cor