The intention of the original judgment and the difference between a simple money decree and a decree under Order 34 of the Code were crucial in determining the permissibility of amending the decree.

M.M. Kumar, J. - This petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity the Code) prays for quashing order dated 8.8.2003 passed by the Civil Judge (Jr. Division), Chandigarh dismissing the application of the plaintiff-petitioner for amendment of the decree dated 30.10.1998 passed by the then Sub Judge Ist Class, Chandigarh. In the application, the prayer made is for amendment of the judgment and decree dated 30.10.1998 by changing the simple money decree into a decree under Order 34 of the Code.

2. Brief facts of the case are that the plaintiff-petitioner had filed a suit for recovery of Rs. 2,35,740.40 with future interest @ 19 per cent p.a. with quarterly rest by sale of mortgaged property. As the loan was advanced at Jullunder, an objection with regard to the jurisdiction of the Courts at Chandigarh was raised which has been decided in favour of the plaintiff- petitioner on the ground that the mortgaged property is situated at Chandigarh. The Civil Judge passed a simple money decree vide its judgment and decree dated 30.10.1998. Thereafter an application was filed being Misc. No. 6 of 10.6.1999 for changing the nature of the decree from simple money decree to the one under Order 34 of the Code. The ld. Civil Judge dismissed the application on the ground that there was nothing on the record to show nor the tenor of the judgment passed by the Civil Judge reflects any such intention that he intended to pass a decree under Order 34 of the Code instead of passing a simple money decree. It has further been held that a simple money decree instead of decree for sale of mortgaged property cannot be termed as an accidental slip. Even otherwise, the period for filing the appeal has expired by the time the application for amendment under Sections 151 and 152 of the Code was filed.

3. Ms. A.P. Kaur, learned counsel for the plaintiff-petitioner has argued that the suit was tried at Chandigarh for the simple reason that the mortgaged property was situated at Chandigarh and an objection with regard to the jurisdiction of the Courts at Chandigarh was taken and decided in favour of the plaintiff-respondent on the ground that the mortgaged property has been taken into consideration. The learned counsel has urged that suit was required to be decree under Order 34 of the Code. According to the learned counsel such an error is an accidental slip within the meaning of Section 152 of the Code and was liable to be rectified by the Civil Judge in exercise of its jurisdiction. In support of her submission, the learned counsel has placed reliance on a judgment of the Kerala High Court in the case of Syamala v. Catholic Syrian Bank, 2002(1) ISJ (Banking) 189.

4. After hearing the learned counsel at a considerable length, I find that no legal infirmity could be found with the order passed by the ld. Civil Judge. There is a world of difference between the simple money decree and a decree passed under Order 34 of the Code. Such a mistake cannot be considered as an accidental slip. Moreover, the tenor of the impugned judgment does not show that there was any intention of the Court to pass a decree under Order 34 of the Code. Merely because the mortgaged property is situated at Chandigarh does not necessarily mean that a decree under Order 34 of the Code was liable to be passed. It is not unknown that even in cases where relief of passing a decree under Order 34 of the Code has been claimed, the Courts have been passing simple money decrees. By no stretch of imagination a correction can be carried to change the nature of the decree from simple money decree to the one passed under Order 34 of the Code.

5. The judgment of the Kerala High Court in Syamalas case (supra) on which reliance has been placed by the learned counsel does not rescue the plaintiff-petitioner nor it advance its case. In that case the court has specifically gathered the intention of the Munsif which passed the decree that his intention was to pass