The petitioner has applied under section 152, Civil Procedure Code or in the alternative, under Order 47, rule 1, for review on the ground that the petitioner as claimant in a case under the Motor Vehicles Act had claimed future interest for the pendency of the proceeding but the same was not granted although the point with reference to it had been argued at the time of the hearing of the appeal.
2. The petitioner says that the omission to grant future interest in this case arose on account of accidental slip or omission. She, therefore, prays for grant of such interest for the pendency of the proceeding both in the Court of first instance and in this Court of appeal at a reasonable rate either in exercise of the Court's power under section 152 or on the ground that failure to award the same arose on account of accidental slip or omission.
3. Reliance has been placed on behalf of the petitioner in support of this petition upon the decision of the Madhya Bharat High Court reported in Firozshoh v. State., A I R 1957 M B 50.
4. On the other hand, it is contended on behalf of the opponent that having regard to section 34 (2) of the Civil Procedure Code, where the decree is silent as to award of future interest, it should be deemed to have been refused and no separate suit for the purpose is competent. Reliance also has been placed upon the decision in Thimgnanavalli Amal v. P. Venugopala Pillai and others., A I R 1940 Mad. 29. in support of the contention that where the silence as to reference to future interest in the decree is in accordance with the judgment which too is silent with reference to it, then even if the plaintiff ought to have had future interest but had not been granted due to accidental omission or overlooking the omission cannot be rectified.
5. In my opinion, this is a fit case in which we should act in accordance with the power under section 152, Civil Procedure Code and award future interest to the petitioner since I must frankly say that the point regarding award of future interest had been pressed and argued at the time of the hearing of the appeal but the matter had slipped from my mind altogether. This was clearly a case of an accidental slip or omission. Under these circumstances, the decision in Firozshoh v. State., A I R 1957 M B 50. clearly applies. It was held in that case that future interest can be awarded by acting under section 152, Civil Procedure Code. In the decision reported in Thimgnanavalli Amal v. P. Venugopala Pillai and others., A I R 1940 Mad. 29. it seems to have been assumed that such a mistake if it occurred in the decree in spite of mention of future interest in the judgment, the Court would have power under section 152 to rectify the mistake. But if it occurs in the decree because of omission of it in the judgment the mistake cannot be corrected. This, to my mind, assumes that errors in the judgment due to accidental slip or omission due to oversight on the part of the Court cannot be corrected in exercise of Court's power under section 152, Civil Procedure Code. The wording in section 152, however, places errors either in the judgment or decrees arising out of accidental slip or omission on the same plane and the distinction of the nature suggested in the Madras decision does not appear to be plain on its language Section 34 (2) to which reference is made in the Madras decision cannot be held to come in the way of such correction of mistakes. That provision only is meant to lay down a rule of construing decree and to provide a bar for a separate suit. It does not provide for a case such as the present. It is well established that no party should be made to suffer due to omission or mistake of a Court alone.
6. I would, therefore, consider it fit to approve of the view in the Madhya Bharat case referred to above and award future interest from the date of the claim petition till satisfaction at Rs. 6 per cent, per annum. Judgment and decree of this Court may accordingly be modified.
Decree modified.