A clerical mistake in a decree can be corrected under Sections 151 and 152 of the Code of Civil Procedure, even after the appeal has been admitted in the Supreme Court.

G. K. MISRA, J.

( 1 ) IN T. S. No. 122/56 in the Court of the Munsif, Bargarh a preliminary decree for partition was passed on 13-11-58 which was confirmed in T. A. No. 61 of 59 in the court of the Subordinate Judge of Sambalpur on 9-4-60. Concluding portion of the order dated 20-10-1962 in the final decree proceeding was to the following effect:

"in the result, the preliminary decree be made final. The report of the commissioner, traced map be made part of the final decree. The defendants are entitled to get Rs. 1. 700 from the plaintiff towards the mesne profits for the years 1957 to 1960. The final decree proceeding shall remain open till the mesne profits for the year 1961 is calculated. " it is thus manifest that the Court did not pass any order regarding costs in the judgment of the final decree proceeding. On the basis of the order dated 22-10-62 final decree was drawn up on 17-11-1902. The decree however contained a clause regarding payment of costs which was not in the judgment to the effect-"parties shall hear their own costs of the final decree in proportion to their share. The sum of Rs. 375. 03 np. be paid by the plaintiffs to the defendants the costs of the final decree proceeding. "

In T. S. No. 139/26 of 1962-63, the Subordinate Judge reduced the quantum of mesne profits to Rs. 1,280. But no reference was made in the appellate judgment to the award of the costs to the defendants against the plaintiffs in the final decree. Ex. Case No. 12/63 was filed by the defendants for realisation of cost. Plaintiff's objection that the costs have not been included in the judgment was rejected on 14-9-64. On 30-10-64 plaintiffs filed application for amendment of the decree under Section 152, C. P. C. This application was rejected on 23-11-64. Against the order rejecting the application, the Civil Revision has been filed. The learned trial Court dismissed the application mainly on the ground that under section 35 (2), C. P. C. where the Court directs that any costs shall not follow the event, the Court shall state its reason in writing. As the judgment did not contain any reasoning, award of costs in the decree, was legal and that was the intention of the Court. He further found that the mistake was not a clerical or arithmetical mistake and the decree cannot be amended.

( 2 ) THE questions arise for consideration, (1) is the amendment of the decree permissible in the facts and circumstances of the case, and (2) even if it is permissible whether it should be allowed at such a late stage when the matter was not agitated in appeal.

( 3 ) FOR reasons, I would presently discuss, the amendment should be allowed both under Sections 151 and 152, C. P. C. Order 20, Rule 6 (1) enacts that the decree shall agree with the judgment. This is in consonance with the definition of 'decree' given in Section 2 (2), C. P. C. 'decree' means the formal expression of an adjudication. The adjudication is made in the judgment. In the decree a formal expression is given to such an adjudication. If the decree is not in conformity with the judgment, the decree must be amended to bring it in line with the judgment. Their Lordships of the Privy Council observed in AIR 1944 PC 46 as follows:

"under the Code, the decree is the formal expression of the adjudication (Section 2): it is imperative that it should conform to the judgment (Order 20, Rule 6); every Court has power to amend its decree so as to carry out its own meaning (cf. Section 152 ). " a classical exposition of the law was given in (1885) 30 Ch D 239 In re, Swire; mellor v. Swire. This decision was accepted as laying down good law in AIR 1926 pc 136. In that case Lindley, L. J. said: "this case has raised a discussion of some importance, because it was contended that when once the order of the Court was passed and entered it could not be put right, even although as drawn it did not express the order as intended to be made. I protest against any such notion. There is no such magic in passing a