Omission to decree counter-claim in judgment's operative part and decree, despite favourable body findings, is substantive error not correctable under Section 152 CPC; remedy via appeal or review required.

By way of this petition, the petitioners have, inter alia, prayed for the following relief:-

It is, therefore, prayed this petition may kindly be allowed and the impugned order dated 30. 10 2015, passed by the learned Civil Judge (Sr. Div.) Court No.1, Ghumarwin, District Bilaspur, in CMA No 181-6/2009, may kindly be set aside and application under section 152 of the Code of Civil Procedure may kindly be allowed with costs throughout in the interest of justice and fair play.”

2. Brief facts necessary for the adjudication of this petition are that a Civil Suit for declaration and permanent prohibitory injunction was filed, i.e. Civil Suit No.10-1 of 1995/87, titled Sanjeev Kumar and another Versus Durga and others by Sanjeev Kumar and Anil Kumar . In this Civil Suit, the defendants besides filing written statement have also filed a Counter Claim. The Civil Suit was disposed of vide judgment and decree dated 27.03.1995 (Annexure P-2). Para-17 of the said judgment reads as under:-

“17. In view of my findings on the aforesaid issues, the suit of the plaintiffs fails and the same is hereby dismissed with costs. Decree Sheet be prepared accordingly. The file after completion be consigned to record room.”

3. The decree passed by the learned Trial Court in the said suit reads as under:-

“Plaint presented on the 22th September, 1907. This suit coming on this day for final disposal before M.K. Bansal Sub Judge 1st Class Chumarwin District Bilaspur H.P. In the presence of Sh. B.S. Thakur Adv, counsel for the plaintiffs and Sh. B.S. Chandel Adv. counsel for defendant No. 1 & 2, and Sh. R.L. Bhardwaj Adv. counsel for the defendant No. 3 & 4. It is ordered that the suit of the plaintiffs fails and the same is hereby dismissed with costs. It is further ordered that the plaintiffs shall also pay Rs.230-50 to the defendants No. 1 & 2. Costs of suit.”

4. In this decided case, in the month of May, 2009, an application was filed under Section 152 of the CIVIL PROCEDURE CODE by the petitioners herein to correct the error in the decree. Copy of the application is on record as Annexure P-5.

5. It was mentioned in the application that the non- applicants/plaintiffs had filed the Civil Suit, which was dismissed on 27.03.1995. The applicants had filed written statement alongwith Counter Claim. Learned Court below framed the Issues in the Counter Claim. These issues were decided in favour of the applicants. Inadvertently and due to the mistake of the Court, in the judgment and decree passed, it ‘slipped to decree the Counter Claim in the decree sheet”. It was further mentioned in the application that the said omission in the decree dated 27.03.1995 would cause difficulty and hardships to the applicants and therefore, the omission deserves to be corrected.

6. The application was opposed in terms of the reply, in which it was inter alia mentioned that the application filed under Section 152 of the CIVIL PROCEDURE CODE was not maintainable. It was further mentioned in the reply that an appeal was filed against the judgment and decree of the learned Sub-Judge, 1st Class Ghumarwin before the learned Appellate Court and this judgment merged in the judgment and decree passed by the learned Appellate Court. The application was also opposed by the non-applicants/plaintiffs on the ground of maintainability and also on the account of subsequent events which were narrated in the re