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P.V Varadaraja Iyer v. Ammukutty Amma And Others

Kerala High Court

Jul 3, 1997

Judgment

Subsequent
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Structured Summary of the Opinion

Factual and Procedural Background

The petition is filed under Sections 151 and 152 of the Code of Civil Procedure seeking an amendment to the decree passed by this Court in AS 311 of 1980 (judgment dated 28-6-1986). AS 311/80 itself arose from OS 118 of 1975 (Sub-Court, Thrissur), a suit by the deceased father of the petitioner for recovery of possession with mesne profits. The trial Court decreed possession and awarded mesne profits, allowing the first defendant value of improvements and a right of set-off against mesne profits. On appeal (AS 311 of 1980) this Court confirmed the decree for possession and mesne profits but modified it to direct that mesne profits were recoverable only from the first defendant and that the first defendant was not entitled to value of improvements (with a consequential deletion of set-off).

The decree drafted after the appeal contained two clauses:

the plaintiff is entitled to get mesne profits only from the first defendant and not from the other defendants; and
save as aforesaid the decree of the lower court is confirmed.

The petitioner sought correction/amendment of the decree to add an express clause (to be inserted as clause 1(a)) making clear that the first defendant is not entitled to value of improvements and therefore no set-off is allowed. Respondents opposed the amendment, contending that this Court lacked jurisdiction because the decree and judgment have merged with the Supreme Court's order dismissing the respondents' Special Leave Petition (SLP (Civil) No. 1678 of 1987).

Legal Issues Presented

Whether the dismissal of the SLP filed against the decree and judgment of this Court precludes this Court from amending or correcting its decree under Sections 151 and 152 CPC to bring the decree into conformity with the judgment.
Whether the principle of merger (of a High Court order with a Supreme Court order on dismissal of an SLP) that precludes review also bars the exercise of powers under Ss. 151 and 152 CPC to amend or correct a decree.

Arguments of the Parties

Respondents' Arguments

The respondents opposed the petition on the ground that this Court lacked power to allow the amendment because the decree and judgment of this Court had merged into the Supreme Court's order dismissing their SLP (Civil) No. 1678 of 1987.
Learned counsel for the respondents relied on Supreme Court decisions (including State of Maharashtra v. Prabhakar Bhikaji Ingle and S.N. Dharma Sangam Trust v. Swami Prakasananda) to contend that once an SLP is dismissed — whether in limine or on merits after hearing — the Supreme Court's decision precludes the High Court from correcting or reviewing its decree under Section 152 CPC.

Petitioner's Position (as presented to the Court)

The petitioner sought only an amendment/correction of the decree to make it conform with the modification expressed in this Court's judgment (i.e., to make clear that the first defendant is not entitled to value of improvements and no set-off is allowed).
The petitioner did not seek review of the judgment or decree; the prayer was limited to correction under Ss. 151 and 152 CPC.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State of Maharashtra v. Prabhakar Bhikaji Ingle, (1996) 3 SCC 463 (AIR 1996 SC 3069)	Illustrates that reconsideration/review after dismissal of an SLP can unsettle finality and is "deleterious to the judicial discipline"; cited as authority that merger operates to bar review.	The Court acknowledged the decision as authority against post-SLP review but distinguished it from the present case, emphasizing that the bar on review does not automatically extend to the limited power to amend or correct a decree under Ss. 151/152 CPC.
S.N. Dharma Sangam Trust v. Swami Prakasananda, (1997) 1 Ker LT 829 (SC)	States that once the Supreme Court has passed an order in an SLP, the High Court's order stands merged and the High Court/Tribunal is deprived of jurisdiction to review that order.	The Court accepted the statement as settling the law on review/merger but held that the principle of merger applicable to review does not preclude the limited corrective powers under Ss. 151 and 152 CPC to amend a decree to conform with the Court's own judgment.
J.M.D. Syndicate v. I.-T. Commr., New Delhi, AIR 1977 SC 1348	Used to illustrate the recognised principle underlying Section 151 CPC: courts possess inherent powers necessary to do justice and to undo wrongs in administration of justice.	The Court relied on this precedent to justify the inherent power under Section 151 as a corollary of the Court's duty to do justice, supporting the availability of corrective action by the court that passed the decree.
Tulsipur Sugar Co. v. State of U.P., AIR 1970 SC 70	Supports the principles behind Section 152 CPC: (1) an act of the Court should prejudice no party; and (2) courts must ensure their records correctly represent the state of affairs.	The Court invoked these principles to explain why Section 152 empowers amendment/correction of decrees and records, reinforcing that such corrections may be made even where finality attaches to an order for other purposes.

Court's Reasoning and Analysis

The Court proceeded in a stepwise analysis:

Distinction between review and correction/amendment:
The Court emphasised that the power of review (governed by S.114 and Order XLVII, Rule 1) allows a court to reopen and reconsider the entire case and to set aside or modify orders on grounds that may be different from those on which the original order was based. Review, therefore, can unsettle finality and is appropriately restrained after dismissal of an SLP because of the merger principle.
Limited nature of Ss. 151 and 152 powers:
The Court found that the powers under Section 151 (inherent powers) and Section 152 (correction of clerical errors, accidental slips or omissions) are conceptually different from the power of review. Those powers operate to ensure that court records truthfully reflect the judgment and to prevent prejudice resulting from inadvertent errors. Such exercises typically do not reopen the merits of the decision.
Application of legislative intent and specific provisions:
The Court referred to Section 153-A (inserted by amendment in 1976) and Order XLI, Rule 11 to indicate legislative recognition that correction/amendment powers should be available in specified circumstances even when appeals are pending or limited dispositions occur. This was used to support a view that amendment under Section 152 can be exercised by the court which passed the order to make its records correct, without amounting to a review.
Consequence for merger principle:
While the Court accepted that merger rules bar review after dismissal of an SLP, it held that the rule of merger does not automatically extend to bar the narrow corrective jurisdiction under Ss. 151 and 152 where the court seeks only to amend a decree to make it conform to its own judgment. Thus, dismissal of the SLP did not deprive this Court of authority to make the limited correction sought.
Application to the facts:
On comparing the judgment (which explicitly modified the decree by denying the first defendant value of improvements and any set-off) with the decree as drafted (which lacked an express clause to that effect), the Court concluded that the amendment sought was intended solely to bring the decree into conformity with the judgment and involved correcting an omission rather than reviewing the decision itself.

Holding and Implications

Holding: The Civil Miscellaneous Petition under Sections 151 and 152 CPC is allowed. The Court held that the dismissal of the SLP (Civil) No. 1678 of 1987 does not bar this Court from exercising its power under Section 152 CPC to amend the decree in AS 311 of 1980 for the limited purpose of bringing the decree into conformity with the judgment.

The Court directed the decree to be amended by inserting the following clause as "1(a)" between clauses (1) and (2) of the drafted decree:

“1(a)— that the first defendant is not, however, entitled to any value of improvements and, therefore, no set-off is also allowed to him.”

Implications:

Direct consequence: The decree in AS 311 of 1980 will be corrected to include the explicit statement that the first defendant is not entitled to value of improvements and no set-off is allowed — thereby aligning the decree with the Court's judgment.
Legal principle stated by this Court: While merger of a High Court order with a Supreme Court order on dismissal of an SLP bars review, it does not necessarily bar the limited corrective jurisdiction under Ss. 151 and 152 CPC to amend or correct a decree drafted by the court that passed the judgment when the amendment merely brings the decree into conformity with the judgment. The Court therefore overruled the respondents' objection based on merger for the purpose of Section 152 exercise in this case.
No wider precedent beyond the scope of the opinion is established beyond these conclusions; the decision is confined to allowing the limited correction/amendment sought and distinguishing review jurisdiction from corrective powers under Ss. 151 and 152 CPC.

Disposition: Petition allowed.

Show all summary ...

This is a petition filed under Ss. 151 and 152 of the Civil Procedure Code (for short ‘the Code’) to amend the decree passed by this Court in AS 311 of 1980 on 28-6-1986. Respondents have opposed the prayer stating that this Court has no power to allow the same since the decree and judgment passed by this Court have merged in the order passed by the Supreme Court dismissing the SLP (Civil) No. 1678 of 1987 filed by the respondents. In this connection, learned counsel has relied upon the following decisions of the Supreme Court to contend for the petition that once a SLP is dismissed whether in limine or on merits after hearing the respondents, the decision of the Supreme Court would preclude this Court even from correcting the decree in exercise of the power conferred on it under S. 152 of the Code:

1. State of Maharashtra v. Prabhakar Bhikaji Ingle (1996) 3 SCC 463 :(1996) 3 JT (SC) 567: (AIR 1996 SC 3069).

2. S.N Dharma Sangam Trust v. Swami Prakasananda (1997) 1 Ker LT 829 (SC).

2. The short question to be considered is whether the dismissal of the SLP filed by the respondents against the decree and judgment of this Court passed in AS 311/80 would preclude this Court from amending the decree passed by this Court in the appeal as prayed for in the petition, if it is otherwise justified.

3. The factual background in which the petitioner has filed the petition can be relevantly noted at this stage: The appeal, AS 311 of 1980, arose out of OS 118 of 1975 on the file of the Sub-Court, Thrissur filed by the deceased father of the petitioner. The said suit was for recovery of possession of the suit properties with mesne profits from the respondents. The trial Court decreed the suit for recovery of the plaint schedule properties with mesne profits. The trial Court also granted to the first defendant value of improvements and a right to set off such amounts against the amount found due to the plaintiff as mesne profits from him. First defendant filed the appeal challenging the decree passed by the trial Court. In appeal, this Court confirmed the decree for possession of the suit properties with mesne profits at the rate awarded by the trial Court with the following modification:

“However, we modify the decree by directing that the plaintiff is entitled to get mesne profits only from the first defendant and not from any other defendants. As the first defendant is not entitled to value of improvements, no provision for set-off in that regard need be made in the decree. The appeal is thus disposed of without any order as to costs.”

Though such a modification was effected by this Court as per its judgment, the decree drafted by this Court (omitting the formal parts) is to the following effect:

“1. that the plaintiff be and hereby is entitled to get mesne profits only from the first defendant and not from the other defendants;

2. that save as aforesaid the decree of the lower court be and hereby is confirmed.”

What the petitioner wanted by the amendment is to have a new term added in between the existing two clauses which would have the effect of incorporating the modification effected by this Court as per its judgment in the decree drafted in the appeal. On going through the relevant portion of the judgment modifying the decree passed by the trial Court and the decree drafted by this Court, we are firmly of the view that the real purpose of the amendment sought for is to bring the decree in conformity with the modification effected by this Court as per its judgment. Unless a term as suggested by the petitioner is added in the decree, it will not fully reflect the amendment effected in the appeal. In the circumstances, but for the objection raised regarding lack of power or jurisdiction to amend the decree and judgment by the respondents, we would have straightway allowed the amendment sought for in exercise of the powers specifically conferred on us under S. 152, CPC.

4. As regards the objection raised by the respondents it is important to note at the outset itself that no review of the decree and judgment is sought for and what is sought for is only an amendment or correction of the decree to bring it in conformity with the judgment.

5. With reference to the power of review, the Supreme Court has stated thus in S.N Dharma Sangam Trust v. Swami Prakasananda (1997) 1 Ker LT 829 (SC):

“Once this Court has passed an order (in SLP), the order passed by the High Court stands merged with the order passed by this Court. Thereafter, the High Court/Tribunal is devoid of the jurisdiction to review the order.”

As such, as regards the power of review, law has been settled and settled against the exercise of any such power by the High Court or any Tribunal after the dismissal of the Special Leave Petition either in limine or on merits after hearing both sides on the principle that the order or judgment of the High Court merges with the order in the S.L.P

6. But the limited question arising for consideration in this case is as to whether the dismissal of the SLP filed by one of the parties against the decree and judgment of this Court passed in appeal would preclude this Court from exercising powers under S. 151 or S. 152 of the Code to amend or correct the decree to bring it in conformity with the judgment passed by this Court in appropriate cases. We do not think that the dismissal of SLP filed against an order or judgment either in limine or on merits after hearing both sides would stand in the way of exercise of the powers conferred on this Court under Ss. 151 and 152 of the Code as a Court which has passed the judgment and decree in appeal, to amend the decree to bring it in conformity with the judgment. The principle of merger operating as a bar against review of an order or judgment after the dismissal of the SLP in limine or otherwise cannot apply to a case where the prayer is only to exercise power under Ss. 151 and 152 of the Code.

7. The power of review cannot be equated to the power of jurisdiction to amend or correct the orders and judgments conferred on the Courts under Ss. 151 and 152 of the Code. While exercising the power of review, the Court has power to reconsider the entire case afresh and to make such orders as it thinks fit. In exercise of such power, the Court can set aside or modify the orders, judgments and decrees sought to be reviewed either wholly or in part on the basis of reasons altogether different from the reasons contained in the original order or judgment. The provisions in S. 114 and Order XL VII, Rule 1 of the Code prescribe the requirements to be complied with before exercising the power of review, its extent and the limitations subject to which it should be exercised. In a case where appeal is provided, the power of review can be exercised only if no appeal has been preferred against the order of judgment. In the circumstances, if it is held that power of review is possible even after the dismissal of SLP, it may go against the finality which attaches to the order or judgment passed by the High Court on the dismissal of the SLP. The effect of dismissal of the SLP filed against orders or judgments of the High Court is to confirm such orders or judgments and to make them final and binding on the parties concerned. Thereafter it may not be permissible to allow reconsideration of such orders and judgments which have become final and to unsettle such decisions as has happened in State of Maharashtra v. Prabhakar Bhikaji Ingle (1996) 3 SCC 463 : (AIR 1996 SC 3069). As held by the Supreme Court in the above case, such exercise of power will be ‘deleterious to the judicial discipline’. It is to avoid such deleterious effect on judicial discipline that the Supreme Court has settled the law against such power of review by stating that there is a merger of the order of judgment of the High Court with that of the order passed in SLP by the Supreme Court whether in limine or otherwise.

8. Understanding the law settled by the Supreme Court in the above decisions in the manner indicated above, we do not find any justification to extend the said law or principle to a case like the one on hand where the prayer is only to amend the decree so as to bring it in conformity with the judgment in exercise of the power under S. 152 or when the prayer is only to invoke the power conferred under S. 151 of the Code. The principle underlying the provisions contained in Ss. 151 and 152 are entirely different from the principle on the basis of which power of review is conferred on courts. Every Court is constituted for the purpose of doing justice according to law and must be deemed to possess as a necessary corollary and has inherent in its very constitution of such powers as may be necessary to do the right and to undo the wrong in the course of administration of justice. This is the recognised principle underlying the provisions contained in S. 151 of the Code (See: J.M.D Syndicate v. I.-T. Commr., New Delhi, AIR 1977 SC 1348). Section 152 of the Code is again based on two important principles. The first is that an act of the Court shall prejudice no party, and the other, that Courts have a duty to see that their records are true and they represent the correct state of affairs (See: Tulsipur Sugar Co. v. State of U.P, AIR 1970 SC 70).

9. It is in the light of the above principles that the Court has been empowered to act even suo motu under Section 152. The amendment of a decree by correcting accidental errors, slips or omissions may not involve review or reopening of the decision in the case. It may not have any effect on the finality of the decision rendered by the Court. Such exercise of power may not have the undesirable effect of unsettlement of the, finality which attaches to the order or judgment by the dismissal of the SLP by the Supreme Court. We feel that it is after taking note of the above essential distinction between the power of review and the power conferred on Courts under Section 152 of the Code and the desirability of exercising such power in all appropriate cases by the Court which passed the order or judgment itself that the legislature has thought it fit to incorporate the provisions contained in Section 153-A of the Code by amending the Code in 1976. Section 153-A specifically empowers the Court to exercise the power under Section 152 in appropriate cases even where an appeal is filed and the appellate Court has chosen to dismiss the appeal under Order XLI, Rule 11 of the Code. Possibly the above provision would indicate that even in cases where appeal is provided and the parties have preferred appeals so long as the appellate Court has not entertained the appeal, the Court which has passed the order, judgment or decree may have power to amend the decree in exercise of the power conferred under Section 152 of the Code. When an appeal is entertained after considering under Order XLI, Rule 11, the decree and judgment may be open for correction in all respects by the appellate Court. Similarly when an appeal is disposed of by the appellate Court, the judgment and decree appealed against merges with the appellate order, judgment or decree and there may not thereafter be any question of exercise of the power conferred under Section 152 by the Court which has passed the order, judgment or decree.

10. In this view, we would hold that there may not be any merger of the decree and judgment passed by this Court in AS 311 of 1980 with the order of dismissal passed in SLP (Civil) 1678 of 1987 for the purpose of exercising the power vested in this Court under Section 152 of the Code and invoked by the petitioner in this case. As such, we would overrule the objection raised by the respondents and would allow the application. There will be a direction to amend the decree by adding a clause as ‘1(a)’ between clauses (1) and (2) in the decree already drafted in the appeal in the following terms: