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K. Rajamouli v. A.V.K.N Swamy .
Factual and Procedural Background
The dispute arose out of a partnership between the appellant and the respondent and was referred to arbitration. On 11-07-1987 the arbitrators awarded the respondent Rs 7,00,000, payable by the appellant in three instalments. The respondent instituted Suit No. 1377 of 1987 for a decree in terms of the award and obtained a decree for Rs 6,50,000, which did not include pendente lite interest.
During execution the respondent sought pendente lite interest at 24%, but the executing court rejected the claim. A civil revision before the High Court was also dismissed (18-09-1991). The respondent then moved an application under Section 152 CPC to amend the decree so as to include pendente lite interest; the trial court rejected the application (15-09-1992). In CRP No. 3077 of 1992 the High Court reversed the trial court on 27-11-1992 and amended the decree granting interest.
The appellant pursued several proceedings: a review before the High Court, a special leave petition (SLP) against the main High Court judgment (dismissed summarily on 01-02-1993), a review of that dismissal (dismissed 16-04-1993), and finally an SLP against the High Court’s dismissal of its review petition. Leave was granted on 29-10-1993, giving rise to the present civil appeal.
Legal Issues Presented
- Whether the present appeal is barred by res judicata owing to an earlier dismissal in limine of a special leave petition against the main High Court judgment.
- Whether a court can, under Section 152 of the Code of Civil Procedure, amend a decree to award pendente lite interest when neither the arbitral award nor the original decree granted such interest.
Arguments of the Parties
Respondent's Arguments
- The second SLP/appeal is not maintainable because the earlier SLP was dismissed by the Supreme Court, attracting the bar of res judicata.
- Relied on Abbai Maligai Partnership Firm v. K. Santhakumaran (1998) 7 SCC 386, Sree Narayana Dharmsanghom Trust v. Swami Prakasananda (1997) 6 SCC 78, and State of Maharashtra v. Prabhakar Bhikaji Ingle (1996) 3 SCC 463.
Appellant's Arguments
- Cited Kunhayammed v. State of Kerala (2000) 6 SCC 359 to contend that dismissal of an SLP without reasons does not lead to merger or res judicata where a review petition in the High Court was already pending.
- Asserted that omission to award pendente lite interest is not a clerical or accidental error; therefore, Section 152 CPC could not be invoked by the High Court, particularly in revision under Section 115 CPC.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Abbai Maligai Partnership Firm v. K. Santhakumaran (1998) 7 SCC 386 | Effect of SLP dismissal on maintainability of subsequent review/appeal; abuse of process where review filed after SLP dismissal. | Distinguished; held inapplicable because in the present case the review was filed timely and before the first SLP. |
| Sree Narayana Dharmsanghom Trust v. Swami Prakasananda (1997) 6 SCC 78 | Support for the plea of res judicata after SLP dismissal. | Cited by respondent; not accepted by the Court in light of Kunhayammed. |
| State of Maharashtra v. Prabhakar Bhikaji Ingle (1996) 3 SCC 463 | Similar proposition on bar of successive SLPs. | Cited by respondent; Court preferred the later three-Judge ruling in Kunhayammed. |
| Kunhayammed v. State of Kerala (2000) 6 SCC 359 | Dismissal of SLP without reasons does not cause merger; no res judicata when review was already pending. | Followed; formed the basis for overruling the respondent’s preliminary objection. |
| Dwaraka Das v. State of M.P. (1999) 3 SCC 500 | Omission to grant pendente lite interest is not a clerical error correctable under Section 152 CPC. | Applied directly to hold that the High Court lacked power to add interest via Section 152. |
| L. Janakiramma Iyer v. P.M. Nilakanta Iyer, AIR 1962 SC 633; 1962 Supp (1) SCR 206 | Typographical errors may be corrected under Section 152 CPC. | Distinguished; that case involved a mere typographical substitution (“net” to “mesne”), unlike the substantive addition of interest here. |
Court's Reasoning and Analysis
On the preliminary objection (res judicata): The Court held that dismissal of an earlier SLP in limine and without reasons does not result in merger of the High Court’s judgment with the Supreme Court’s order. Relying on Kunhayammed, it reasoned that where a review petition is filed within time and prior to the first SLP, prosecution of both remedies is permissible, and a subsequent SLP from the dismissal of the review is maintainable. The facts differed materially from Abbai Maligai, where the review was filed belatedly after SLP dismissal; hence the respondent’s objection was overruled.
On the correctness of the High Court’s amendment under Section 152 CPC: Section 152 authorises correction of clerical or arithmetical mistakes or accidental slips in judgments or decrees. The Court, following Dwaraka Das, affirmed that omission to grant pendente lite interest is a substantive, not clerical, matter. Neither the arbitrators nor the trial court awarded such interest, and prior attempts to secure it (execution proceedings and revision) had failed. Therefore, the High Court could not employ Section 152, especially through its revisional jurisdiction under Section 115 CPC, to enlarge the decree. The earlier decision in L. Janakiramma Iyer was distinguished as relating only to a typographical correction.
Holding and Implications
Holding: APPEAL ALLOWED – High Court’s judgment amending the decree to award pendente lite interest is set aside.
Implications: The decision clarifies that (1) dismissal of an SLP without reasons does not preclude a subsequent SLP from an order passed in a timely review, and (2) Section 152 CPC cannot be used to introduce substantive reliefs, such as pendente lite interest, absent from the original judgment. The immediate consequence is restoration of the decree without pendente lite interest; no costs were awarded.
Order
1. A dispute out of a partnership firm arose between the appellant and the respondent. With the result, the same was referred to arbitration. The arbitrators appointed by the parties entered into the reference and appointed an umpire. The arbitrators, on 11-7-1987, gave an award for a sum of Rs 7,00,000 to be paid by the appellant herein to the respondent in three instalments. The respondent filed a suit against the arbitrators and the appellant. The said suit was numbered as Suit No. 1377 of 1987. The prayer in the suit was for a decree in terms of the arbitration award. The said suit was decreed for a sum of Rs 6,50,000. It is relevant to mention here that the said decree did not provide for any pendente lite interest. Thereafter, the decree-holder put the decree in execution. In the execution proceedings, the decree-holder claimed pendente lite interest @ 24%. However, the claim of interest by the respondent decree-holder was rejected by the executing court. The decree-holder, thereafter, filed civil revision petition before the High Court against the order passed by the executing court. The said revision petition was dismissed by the High Court on 18-9-1991. The decree-holder filed Interlocutory Application No. 1954 of 1991 before the trial court for amendment of the decree under Section 152 of the Code of Civil Procedure. The prayer in the said interlocutory application was to grant pendente lite interest. The trial court, on 15-9-1992, rejected the said application of the decree-holder. The decree-holder, thereafter, preferred a civil revision petition before the High Court against the order of the trial court rejecting the application. The said civil revision petition was numbered as CRP No. 3077 of 1992. The High Court, on 27-11-1992, allowed the said civil revision petition and awarded interest to the decree-holder by amending the decree of the trial court. On 26-12-1992, the appellant herein filed a review petition before the High Court in CRP No. 3077 of 1992. During the pendency of the said review petition, the appellant herein filed a special leave petition against the main judgment of the High Court dated 27-11-1992 on 10-1-1993. Subsequently, the said special leave petition came up for hearing before a Bench of this Court on 1-2-1993. This Court summarily rejected the said special leave petition without assigning any reason. On 2-3-1993 the appellant filed a review petition before this Court in SLP (C) No. 750 of 1993. This review petition was dismissed on 16-4-1993. On 7-2-1993 the High Court dismissed the review petition. The appellant, thereafter, filed special leave petition against the order dated 17-2-1993 passed by the High Court rejecting the review petition. This Court, on 29-10-1993, granted leave and the special leave petition was converted into this civil appeal.
2. Mr B. Kanta Rao, learned counsel appearing for the respondent raised a preliminary objection that the earlier special leave petition filed by the appellant having been dismissed by this Court, the second special leave petition was not maintainable being barred by the principle of res judicata. In support of his contention, learned counsel relied upon the decisions of this Court in Abbai Maligai Partnership Firm v. K. Santhakumaran (1998) 7 SCC 386, Sree Narayana Dharmsanghom Trust v. Swami Prakasananda (1997) 6 SCC 78 and State of Maharashtra v. Prabhakar Bhikaji Ingle (1996) 3 SCC 463. Learned counsel appearing for the appellant countered the argument by relying upon the decision of a three-Judge Bench of this Court in Kunhayammed v. State of Kerala (2000) 6 SCC 359. In this decision, it was held that on dismissal of a special leave petition without giving any reason, the main judgment of the High Court does not merge with the order of the Apex Court and, therefore, the order of the Apex Court does not constitute res judicata in case a special leave petition is filed against the order passed in the review petition against the main judgment of the High Court. In the said decision, Abbai Maligai Partnership Firm case (1998) 7 SCC 386 which is also a three-Judge Bench decision, was considered and explained in para 26 of the judgment which runs as under:
“26. The underlying logic attaching efficacy to an order of the Supreme Court dismissing SLP after hearing counsel for the parties is discernible from a recent three-Judge Bench decision of this Court in Abbai Maligai Partnership Firm v. K. Santhakumaran (1998) 7 SCC 386. In the matter of eviction proceeding initiated before the Rent Controller, the order passed therein was subjected to appeal and then revision before the High Court. Special leave petitions were preferred before the Supreme Court where the respondents were present on caveat. Both the sides were heard through the Senior Advocates representing them. The special leave petitions were dismissed. The High Court thereafter entertained review petitions which were highly belated and having condoned the delay reversed the orders made earlier in civil revision petitions. The orders in review were challenged by filing appeals under leave granted on special leave petitions. This Court observed that what was done by the learned Single Judge was ‘subversive of judicial discipline’. The facts and circumstances of the case persuaded this Court to form an opinion that the tenants were indulging in vexatious litigations, abusing the process of the Court by approaching the High Court and the very entertainment of review petitions (after condoning a long delay of 221 days) and then reversing the earlier orders was an affront to the order of this Court. However, the learned Judges deciding the case have nowhere in the course of their judgment relied on doctrine of merger for taking the view they have done. A careful reading of this decision brings out the correct statement of law and fortifies us in taking the view as under.”
3. In a nutshell, the decision in the case of Abbai Maligai Partnership Firm (1998) 7 SCC 386 was distinguished on the ground that the question of merger of the judgment of the High Court with the order of the Supreme Court dismissing the special leave petition was not considered and further in Abbai Maligai Partnership Firm (1998) 7 SCC 386 the review petition was filed after a long delay of 221 days after the special leave petition was dismissed by the High Court which was held to be abuse of the process of law.
4. Following the decision in the case of Kunhayammed (2000) 6 SCC 359 we are of the view that the dismissal of the special leave petition against the main judgment of the High Court would not constitute res judicata when a special leave petition is filed against the order passed in the review petition provided the review petition was filed prior to filing of special leave petition against the main judgment of the High Court. The position would be different where after dismissal of the special leave petition against the main judgment a party files a review petition after a long delay on the ground that the party was prosecuting remedy by way of special leave petition. In such a situation the filing of review would be an abuse of the process of the law. We are in agreement with the view taken in Abbai Maligai Partnership Firm (1998) 7 SCC 386 that if the High Court allows the review petition filed after the special leave petition was dismissed after condoning the delay, it would be treated as an affront to the order of the Supreme Court. But this is not the case here. In the present case, the review petition was filed well within time and since the review petition was not being decided by the High Court, the appellant filed the special leave petition against the main judgment of the High Court. We, therefore, overrule the preliminary objection of the counsel for the respondent and hold that this appeal arising out of special leave petition is maintainable.
5. Shri R. Venugopal Reddy, learned Senior Counsel appearing for the appellant then urged that where neither the arbitrators nor the trial court has awarded any pendente lite interest, it was not open to the High Court to exercise its jurisdiction under Section 152 of the Code of Civil Procedure apart from the fact that the trial court having refused to exercise that power, the same was then exercised in revision under Section 115 CPC by the High Court. The argument has merit.
6. Section 152 provides that a clerical or arithmetical mistake 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. The question, therefore, arises is whether omission of pendente lite interest to the decree by the trial court was an accidental or clerical error. In the case of Dwaraka Das v. State of M.P (1999) 3 SCC 500 it was held that the omission in not granting pendente lite interest could not be held to be an accidental omission or mistake and therefore, neither the trial court nor the appellate court has the power to award pendente lite interest under Section 152 of the Code of Civil Procedure. This decision is squarely applicable to the present case. In the present case, neither the arbitrators nor the trial court awarded pendente lite interest to the decree-holder. The executing court also refused to grant pendente lite interest to the decree-holder and the same was upheld by the High Court in the revision petition filed against the order of the executing court. However, the position would be different where the judgment of a court provides for pendente lite interest and the decree omits to mention such interest. Such a mistake could be corrected under Section 152 CPC. The correct position of law is that a decree cannot add or subtract any relief except what has been provided in the judgment. But this is not the case here. Mr B. Kanta Rao, learned counsel appearing for the respondent then relied upon a decision of this Court in L. Janakiramma Iyer v. P.M Nilakanta Iyer AIR 1962 SC 633, 1962 Supp (1) SCR 206. In this case, the trial court awarded mesne profit, however, in the decree it was written as net profit. On an application filed by the plaintiff for correction of the decree under Section 152 of the Code of Civil Procedure, the word “net” was substituted by “mesne”. This was a case of typographical mistake and, therefore, not applicable to the present case.
7. For the aforesaid reasons, these appeals deserve to be allowed. We, accordingly, set aside the judgment under challenge. The civil appeals are allowed. There shall be no order as to costs.
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