1. It appears that Lachmi Narain Sahu and petitioners 2 and 3 filed a title suit No. 49/21 of 1944–46 in the court of the Subordinate Judge of Monghyr for a declaration of title and recovery of possession with regard to certain properties. One Bachu Singh, who was at that time minor, was defendant No. 13 in the suit and was placed under the guardianship of Babu Thakur Pd., Pleader guardian. On 30-11-1946, the suit was decreed, in full on contest against the defendants first party, including defendant No. 13, Bachu Singh, minor. On the first page of the judgment the name of defendant No. 13 was mentioned, but by clerical mistake the name of defendant No. 13, minor Bachu Singh, was omitted from the decree of the trial court. There was subsequently an appeal filed by the major defendants against the decree before the High Court, and in the appeal before the High Court all the defendants were made parties except minor Bachu Singh. The appeal, which was First Appeal No. 6 of 1947, was heard by the High Court and dismissed on 21-8-1951, and the trial court decree was affirmed.
2. It appears that minor Bachu Singh was not a party in First Appeal No. 6 of 1947 by mistake, because his name was not mentioned in the trial court decree. The petitioners took out an execution case, Execution Case No. 19 of 1955, and it was detected in the course of the execution proceedings that there was a variation between the judgment of the trial court and the decree of the trial court. On 13-9-1957, the petitioners filed an application for an amendment of the decree of the trial court by inserting the name of the minor Bachu Singh in the trial court decree, but the Subordinate Judge held that as the decree of the trial Court had merged in the High Court decree it was only the High Court which was the proper authority to amend the decree and not the trial court.
3. In these circumstances the petitioners have moved this High Court for amendment of the decree of the High Court by adding Bachu Singh as defendant No. 13 in the decree.
4. Notice of the application was sent to Bachu Singh, but there is no appearance on his behalf in this Court.
5. In our opinion, the High Court is competent to amend the decree under the provisions of Section 152 of the CPC which states as follows:
“152. Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission may at any time be corrected by the court either of its own motion or on the application of any of the parties.”
6. It appears that in the trial court Bachu Singh, minor, was a party & was represented by a Pleader guardian, Babu Thakur Pd. It was purely a clerical omission that the name of Bachu Singh, minor, was not mentioned in the decree of the trial court. It is true that Bachu Singh was not made a party in the High Court appeal. But the result of the High Court appeal is that the appeal preferred on behalf of the defendants first party was dismissed in its entirety with costs and the trial court decree was confirmed.
7. In Somasundaram Chetty v. Subramanian Chetty, AIR 1926 P.C 136 it was pointed out by the Judicial Committee that the court has jurisdiction to interfere and amend the decree in case there has been an accident or slip in the judgment as drawn up, in which case the court has power to rectify it, and also in a case where the court itself finds that the judgment as drawn up does not correctly state what the court actually decided or intended. The relevant portion of the judgment of the Judicial Committee at p. 141 of the report is reproduced below:
“It is not necessary to cite on this point any authorities in addition to Ainsworth v. Wilding, (1896) 1 Ch. 673. Romer, J. in giving judgment in that case, said at page 676:
“The Court has no jurisdiction after the judgment at the trial has been passed and entered to rehear the case. Formerly the court of Chancery had power to rehear cases which had been tried before it even after decree, had been entered, but that is not so since the Judicature Acts. So far as I am aware the only cases in which the Court can interfere after the passing and entering of the judgment are these (1) where there has been an accident or slip in the judgment as drawn up, in which case the Court has power to rectify it under Order 28, Rule 11, and (2) where the Court itself finds the judgment as drawn up does not correctly state what the Court actually decided and in ded.’
8. He points out that he is not dealing cases where the Court acts with the consent of parties. Cotton, L.J, In re Swire, (1885) 30 D. 239 said:
‘It is only in special circumstances that Court will interfere with an order which has I passed and entered except in case of a mere or verbal inaccuracy, yet, in my opinion, the a has jurisdiction over its own records, and if it that the order as passed and entered contains adjudication upon that which the Court in never has adjudicated upon, then in my opinion has jurisdiction which it will, in a proper case, ercise to correct its record, that it may be in ac dance with the order really pronounced.’
9. Lindley, L.J, said:
‘If it be once made out that the order who passed and entered or not does not express order actually made, the Court has ample juridection to set that right, whether it arises from a trail slip or not.’
10. And Bowen, L.J, said:
‘An order, it seems to me, even when paid entered may be amended by the Court ??? carry out the intention and express the mean of the Court at the time when the order was in provided the amendment be made without ??? or in terms which preclude injustice.’
11. It has also been pointed out by the Judicial Committee in another case, Lala Brij Narain v. Kure Tejbal Bikram Bahadur, 37 Ind App 70 (PC) the trial court has no jurisdiction to amend a cree which has been affirmed in appeal. I therefore, clear that in the present case it is the High Court which has got authority to an the decree and correct the mistake perpetrate the ??? Court in the preparation of the dec which decree has been affirmed by the High ??? in First Appeal No. 6 of 1947. A similar ??? has teen expressed by the Calcutta High Court Hemanta Kumar Ghose v. Rajendia Mondal, 1935 Cal. 619 where it is pointed out that case where the decree of the first court is conf ed or reversed by the appellate court the ??? of the first court is superseded by the decree the appellate court, and the only court that amend the decree thereafter is the appellate ???
12. In the present case we hold that should exercise our power under Section 152 of the CPC and amend the decree the triail Court dated 30-11-1946, by adding Be Singh, minor, under the guardianship of ??? Pd., Pleader guardian, as defendant No. ??? in the trial court decree. We accordingly allow this applicant. There will be no order as to costs.
D.H.Z
13. Application allowed.