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Case Number

C.M.P No. 926 of 2011 in L.P.A No. 3 of 1998

Attorney(S)

G. Jeremiah, Advocate for Petitioner.
M. Kumaraswami, Advocate for Respondent.

Judges

K. Mohan Ram
G.M Akbar Ali, JJ.

Acts

Original Civil jurisdiction, namely.(1) Rule 10 and Rule 11, clauses (b) & (c) of Order 7;(2) Rule 3 of Order 10;(3) Rule 2 of Order 16;(4) Rules 5, 6, 8, 9, 10, 11, 13, 14, 15 & 16
Order 49, Rule 5 of C.P.C, Order 41, Rule 35 of C.P.C and also Section 100-A, C.P.C
Order 18;(5) Rules 1 to 8 of Order 20; and(6) Rule 7 of Order 33
49, Rule 3 read as follows:Application of Rules.
SECTION 151 CIVIL PROCEDURE CODE
Order 41, Rule 35 and Order 49, Rule 3
Order 41, Rule 35 and Order 49, Rule 5
Section 152 of C.P.C
Rule 35 of Order 41
Section 152., C.P.C,
41, Rule 35

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Smart Summary

Structured Summary of the Judgment — G.M. Akbar Ali, J.

Factual and Procedural Background

The Petitioner originally filed Suit O.S. No. 5726 of 1981 in the V Assistant City Civil Court, Chennai, seeking declaration of title and delivery of vacant possession after removal of a superstructure. The Trial Court dismissed the suit on 23.3.1984. The Respondent filed a subsequent suit which was decreed in his favour. The Petitioner filed appeals (A.S. No. 111 of 1985 and Transfer Appeal No. 163 of 1987), which were heard together and dismissed by a Division Bench of this Court. The Petitioner then preferred Letters Patent Appeal Nos. 3 & 4 of 1998; by a common judgment dated 14.3.2002 both Letters Patent Appeals were allowed and a decree was drafted and issued to the Petitioner.

The Respondent appealed to the Supreme Court in Civil Appeals Nos. 2078 and 2079 of 2003; those appeals were dismissed on 29.3.2011, making the judgment and decree in L.P.A. No. 3 of 1998 final.

In April 2002 the Petitioner filed Execution Petition E.P. No. 696 of 2002 before the X Assistant City Civil Court, Chennai. The Respondent objected to execution, contending that the decree in L.P.A. No. 3 of 1998 was non-executable because the drafted judgment and decree did not state that the original suit had been decreed for declaration and recovery of possession — i.e., the consequential reliefs were omitted. The present Civil Miscellaneous Petition was filed to correct that alleged clerical omission in the decree dated 14.3.2002.

Legal Issues Presented

Whether the High Court could amend the decree drafted in Letters Patent Appeal No. 3 of 1998 under Section 152 of the Civil Procedure Code to insert the consequential reliefs (declaration of title and recovery of vacant possession) that were omitted from the drafted decree.
Whether the registry's omission of the consequential reliefs in the decree was a clerical or arithmetical mistake correctable under Section 152 CPC, notwithstanding contentions based on Order 41, Rule 35 and Order 49 (and related provisions) and the alleged merger with the Supreme Court's order.
Whether the Petitioner is precluded from seeking amendment of the decree because she had taken advantage of the decree and had not challenged it subsequently before the appropriate forum.

Arguments of the Parties

Petitioner's Arguments

The original suit sought declaration of title and recovery of vacant possession; although dismissed below, the Division Bench allowed the Letters Patent Appeal and thereby set aside the decrees of dismissal and decreed the suit.
When the High Court's decree was drafted, the registry omitted the consequential relief — the actual decree of the original suit (declaration and vacant possession) — and that omission is a clerical mistake.
The omission can and should be rectified under Section 152 CPC (and the court's inherent powers), and precedent such as Tilak Raj v. Baikunthi Devi and K. Rajamouli v. A.V.K.N. Swamy support correction of clerical mistakes.
Because the judgment itself reflects that the trial and first appellate judgments “cannot be sustained” and that both appeals are allowed, the registry's narrow drafting (only stating that the appellate decree is set aside and the appeal allowed) failed to reflect the court's intended relief.

Respondent's Arguments

The High Court lacks jurisdiction or power to amend the decree as sought by the Petitioner.
The decree has merged with the Supreme Court's order, barring further amendment by this Court.
The Petitioner, having taken advantage of the decree passed in the L.P.A. and defended the decree before the Apex Court, is now estopped from seeking to alter it; she must be satisfied with the decree as drafted.
The Respondent's counsel also invoked procedural provisions (Order 49, Rule 5; Order 41, Rule 35; and Section 100-A CPC) and relied on authorities including Jayalakshmi Coelho v. Oswald Joseph Coelho and Shirin Vishnu Kirpalani v. Vishnu Hiranand Kirpalani to argue that the court must be legally satisfied with a valid finding before rectifying an order or decree and that correction is not permissible in the circumstances alleged.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jayalakshmi Coelho v. Oswald Joseph Coelho, 2001 (3) MLJ 33 (SC)	Confirms Section 152 CPC: clerical or arithmetical errors in decrees can be rectified so that the court's intended order is properly reflected; principle that act of the court shall prejudice no man (actus curiae neminem gravabit).	The Court relied on this authority to reinforce that errors of clerical or accidental omission in a decree are correctable under Section 152 and that the intended relief must be reflected in the decree so as not to prejudice a party.
Tilak Raj v. Baikunthi Devi (D) by LRs., 2009 SAR Civil 407 (SC)	Holds that clerical mistakes can be corrected under Section 152 CPC (and the court's powers) and that genuine, bona fide clerical mistakes should be rectified to serve justice.	The Petitioner relied on this decision; the Court treated it as supporting the proposition that clerical mistakes in decrees can be amended and applied that principle to the registry's omission in the drafted decree.
K. Rajamouli v. A.V.K.N. Swamy, 2001 (5) SCC 37	Affirms that Section 152 CPC permits correction at any time of clerical or arithmetical mistakes or errors arising from accidental slips or omissions.	Quoted in the opinion to support the legal basis (Section 152) for correcting clerical mistakes; used to buttress the conclusion that the registry's omission was correctable.
Shirin Vishnu Kirpalani v. Vishnu Hiranand Kirpalani, AIR 1960 Bom. 447	Deals with Order 41, Rule 35 and Order 49, Rule 3 (as noted by the Court's narration of counsel's reliance).	The Respondent relied on this authority to support limitations on amendment/correction; the Court considered the point but found the contention that Order 41, Rule 35 and Order 49, Rule 5 applied to be unsustainable in the present context.

Court's Reasoning and Analysis

The Court examined the admitted chronology and the text of the Division Bench's judgment in the Letters Patent Appeal. The judgment (para 30) explicitly states that the judgments and decrees of both the Trial Court and the learned Appellate Judge "cannot be sustained" and that "both Appeals are allowed." The Court reasoned that this substantive language indicates that the consequence of allowing the L.P.A. was to set aside the decree of dismissal in the Original Suit and to decree the Original Suit as prayed for.

The decree as drafted by the registry, however, contained only a clause stating that the decree passed in the exercise of the Appellate jurisdiction in Appeal No. 111 of 1985 is set aside and the Appeal is allowed. The registry omitted any clause articulating the consequential relief of declaring the Petitioner's title and directing delivery of vacant possession in the Original Suit.

The Court considered and rejected the Respondent's contention that provisions such as Order 41, Rule 35 and Order 49, Rule 5 (and related provisions) barred correction. The Court explained that the present prayer for amendment did not relate to the date of the decree (which is the subject matter of Order 41, Rule 35) and that Section 152 CPC explicitly permits correction of clerical or arithmetical mistakes or errors arising from accidental slips or omissions "at any time". The Court held that there is no time limit for such corrections.

The Court referred to controlling authorities (including Jayalakshmi Coelho, Tilak Raj and K. Rajamouli) that endorse correction of clerical mistakes under Section 152 (and the inherent power of the court) so that the judgment or decree accurately reflects what the court intended. It emphasized the principle that the court's act should not prejudice any party and that the decree must reflect the court's intended relief; otherwise the cause of justice would be frustrated.

The Court further addressed the contention that the decree had merged with the Supreme Court's order and found that contention unsustainable. It noted that there is no special provision in Letters Patent Appeal for drafting a decree that would justify the omission. The registry should have set forth the consequential relief of decreeing the Original Suit (declaration of title and delivery of vacant possession) as per the prayer in the plaint. The registry's omission was characterized as a clerical mistake and an error apparent on the face of the decree.

Having so analyzed, the Court concluded that it was empowered to correct the decree under Section 152 CPC and directed the registry to amend the decree by inserting specified paragraphs that articulate the decree in respect of the Original Suit, the time for handing over possession, and costs.

Holding and Implications

Holding: The Petition was allowed. The Court held that the omission in the decree drafted in L.P.A. No. 3 of 1998 was a clerical mistake correctable under Section 152 of the Civil Procedure Code, and directed the registry to amend the decree accordingly.

The Court directed the registry to insert the following consequential reliefs into the decree immediately after the first paragraph:

That the Suit in O.S. No. 5728 of 1981 is decreed declaring the Plaintiff's title to the suit property and for delivery of vacant possession after removing the superstructure (specific address stated in the order).
The Defendant shall hand over vacant possession to the Plaintiff within three months from receipt of the copy of the amended decree.
The Respondent shall pay the Appellant a sum of Rs. 125 towards the cost of the L.P.A. and the costs of the lower court as taxed.

Further directions and immediate effects:

The Execution Petition pending in the lower court is to be accepted on the basis of the amended decree; the trial court was directed to dispose of the execution within three months from the date of receipt of this order.
As to the Civil Miscellaneous Petition (CMP) the Court ordered no costs.

Implications: The decision's direct effect is to correct the drafted decree and to permit execution for possession and related reliefs as specified. The opinion does not articulate that it establishes a new legal precedent beyond application of established principles permitting correction of clerical mistakes under Section 152 CPC.

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S. Dhanalakshmi Petitioner v. M.K Satyanarayana Rao

JUDGMENT

G.M Akbar Ali, J.

1. Civil Miscellaneous Petition filed to amend the defect in the decree dated 14.2.2002 in L.P.A No. 3 of 1998 in accordance with the judgment thereby enabling the Petitioner to execute the same for recovery of possession of the property in O.S No. 5728 of 1981 on the file of the V Assistant City Civil Court, Chennai.

2. The Petitioner filed a Suit in O.S No. 5726 of 1981 on the file of the V Assistant City Civil Court, Chennai for a declaration of the title to the suit property and for delivery of vacant possession after removing the superstructure.

3. The Respondent herein resisted the Suit. The Suit was dismissed on 23.3.1984 The Respondent filed a Suit and the same was decreed in his favour. The Appeal preferred by the Petitioner in A.S No. 111 of 1985 on the file of this Court and a Transfer Appeal No. 163 of 1987 were taken up together before this Court and by a common judgment both Appeals were dismissed. Against which Letters Patent Appeal Nos. 3 & 4 of 1998 were preferred by the Petitioner.

4. By a common judgment dated 14.3.2002 both letters patent Appeals were allowed. A decree in L.P.A No. 3 of 1998 was also drafted and issued to the Petitioner. The Respondent preferred an Appeal before the Hon'ble Supreme Court in Civil Appeal No. 2078 and 2079 of 2003 on 29.3.2011 and the Appeals were also dismissed by the Apex Court. Thus the decree and judgment in L.P.A No. 3 of 1998 has become final.

5. In April 2002, the Petitioner filed an Execution Petition in E.P No. 696 of 2002 on the file of the X Assistant City Civil Court Chennai. The Respondent raised a preliminary objection as to the maintainability of the Execution Petition pointing out that the decree passed in L.P.A No. 3 of 1998 is non-executable as the judgment and the decree did not set forth that the original Suit was decreed for a declaration and recovery of possession. According to the Respondent, in effect, there is no provision for recovery of possession.

6. Therefore, the present Petition is filed to rectify the mistake and amend the decree dated 14.3.2002 in L.P.A No. 3/98.

7. Mr. G. Jeremiah, the learned Counsel for the Petitioner would submit that the original Suit was filed for declaration and recovery of possession and the Trial Court as well as the 1st Appellate Court dismissed the Suit and therefore, an Appeal under Letters Patent Appeal was filed before a Division Bench. The learned Counsel pointed out that the Division Bench had allowed the Appeal, thereby setting aside the decree and judgment of dismissal and decreed the Suit.

8. According to the learned Counsel, the judgment and decree has become final as the same was also confirmed by the Hon'ble Supreme Court. The learned Counsel pointed out that while drafting the decree in L.P.A, the registry of this Court had only set aside the decree passed in the Appeals against which the L.P.A was preferred. The consequential relief of decreeing the Suit for declaration of title and recovery of possession was not incorporated.

9. The learned Counsel pointed out through setting aside the decree and judgment in the Appeal itself implies granting of decree in the Suit. The Respondent has raised an objection before the executing Court. Therefore, the Petitioner is constrained to file the present Petition for amendment of the decree in accordance with the judgment in L.P.A

10. On the contrary, Mr. M. Kumaraswami, the learned Counsel for the Respondent would submit that this Court has no jurisdiction or power to amend the decree and would also submit that the decree has merged with the order of the Apex Court and therefore, the Petitioner cannot approach this Court for amendment of decree.

11. The learned Counsel also pointed out that the Petitioner having taken advantage of the decree passed in the L.P.A has to be satisfied herself only with the present decree as she has not challenged the same in the subsequent proceedings and according to the learned Counsel the Petitioner decree holder having defended the decree before the Apex Court, now cannot go back on the decree.

12. The learned Counsel also invited the attention to Order 49, Rule 5 of C.P.C, Order 41, Rule 35 of C.P.C and also Section 100-A, C.P.C He also relied on a decision reported in Jayalakshmi Coelho v. Oswald Joseph Coelho., 2001 (3) MLJ 33 SC for the preposition that the Court must be legally satisfied and arrived at a valid finding that the order or decree contains or omits something which was intended to be otherwise and the Court cannot rectify mistakes.

13. The learned Counsel also relied on a decision reported in Shirin Vishnu Kirpalani v. Vishnu Hiranand Kirpalani, AIR 1960 Bom. 447 where Order 41, Rule 35 and Order 49, Rule 3 are dealt with.

14. Countering the said submissions, Mr. Jeremiah, the learned Counsel for the Petitioner would rely on a decision reported in Tilak Raj v. Baikunthi Devi (D) by LRs., 2009 SAR Civil 407 SC where the Apex Court has held that the Courts are empowered to correct the clerical mistakes under Section 151 of Civil Procedure Code.

15. We have carefully considered the rival contentions put forth on either side and perused the materials available on record.

16. The dates and events are admitted. The Petitioner has filed the Original Suit in O.S No. 5726 of 1981 for the declaration of title and recovery of vacant possession after removing the superstructure. Though the Petitioner had lost in the Trial Court as well as in the First Appellate Court, in the Appeal preferred under Letters Patent Appeal, the Division Bench of this Court found that she was entitled for the relief.

17. In para 30 of the judgment, it is stated “for these reasons, we are of the view that the judgments and decree of both the Trial Court as well as the learned Judge (Appellate) cannot be sustained. Consequently, both Appeals are allowed”

18. While drafting a decree, the Registry has drafted as follows:

‘1. That the decree passed in the exercise of the Appellate jurisdiction of the High Court in Appeal No. 111 of 1985 be and is hereby set aside and this Appeal allowed’.

Section 33 of CPC deals with judgment and decree in Suit which reads as follows:

“Judgment and Decree.— The Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow.”

Section 152 reads as follows:

“Amendment of Judgments, decrees or orders.— 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.”

Order 41, Rule 35 reads as follows:

“35. Date and contents of decree.

(1) The decree of the Appellate Court shall bear date the day on which the judgment was pronounced.

(2) The decree shall contain the number of the Appeal, the names and descriptions of the Appellant and Respondent, and a clear specification of the relief granted or other adjudication made.

(3) The decree shall also state the amount of costs incurred in the Appeal, and by whom, or out of what property, and in what proportions such costs and the costs in the Suit are to be paid.

(4) The decree shall be signed and dated by the Judge or Judges who passed it.

Order 49, Rule 3 read as follows:

“Application of Rules.— The following Rules shall not apply to any Chartered High Court in the exercise of its ordinary or Extraordinary Original Civil jurisdiction, namely.—

(1) Rule 10 and Rule 11, clauses (b) & (c) of Order 7;

(2) Rule 3 of Order 10;

(3) Rule 2 of Order 16;

(4) Rules 5, 6, 8, 9, 10, 11, 13, 14, 15 & 16 (so far as relates to the manner of taking evidence of Order 18;

(5) Rules 1 to 8 of Order 20; and

(6) Rule 7 of Order 33 (so far as relates to the making of a memorandum); and Rule 35 of Order 41 shall not apply to any such High Court in the exercise of its Appellate jurisdiction.

19. The contention of the learned Counsel for the Respondent that Order 41, Rule 35 and Order 49, Rule 5 is attracted is unsustainable for the simple reason that the present prayer for amendment is not relating to the date of decree. Under Section 152, the clerical mistakes in decrees or errors arising therein from any accidental slip or omission may at any time be corrected by the Court. There is no time limit.

20. In Jayalakshmi Coelho v. Oswald Joseph Coelho., 2001 (3) MLJ 33 SC the Apex Court has held as follows:

“13. So far as the legal position is concerned, there would hardly be any doubt about the proposition that in terms of Section 152., C.P.C, any error occurred in the decree on account of arithmetical or clerical error or accidental slip may be rectified by the Court. The principle behind the provision is that no party should suffer due to mistake of the Court. Whatever is intended by the Court while passing the Order or decree must be reflected therein. Otherwise, it would only be destructive to the principle of advancing the cause of justice. A reference in the following cases on the point may be made. The basis of the provision under Section 152, C.P.C is found on the maxim actus curiae neminen gravabit i.e, an act of Court shall prejudice no man”

21. In Tilak Raj v. Baikunthi Devi (D) by LRs., 2009 SAR Civil 407 SC the Apex Court has held as follows:

“14. The aforesaid mistake was of clerical nature which could have been corrected by applying the provisions of Section 152 of the CPC. Counsel appearing for the Respondents also during his submissions fairly accepted the aforesaid position. The remedy that was available to the Appellant was to file an Application seeking for amendment of the decree by way of correcting the clerical mistake in respect of Khasra Number. Since the mistake was clerical in nature and the Appellant being not responsible for the said clerical mistake which had occurred due to wrong recording of Khasra Number in Khasra Girdawari, we find no reason as to why such a genuine and bona fide mistake cannot be allowed to be corrected by exercising the powers under Section 152 of the CPC. In K. Rajamouli v. A.V.K.N Swamy, 2001 (5) SCC 37 this Court held as follows:

“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”.

15. Since the Court exists to dispense justice, any mistake which is found to be clerical in nature should be allowed to be rectified by exercising inherent power vested in the Court for sub-serving the cause of justice. The principle behind the provision is that no party should suffer due to bona fide mistake. Whatever is intended by the Court while passing the order or decree must be properly reflected therein otherwise it would only be destructive of the principle of advancing the cause of justice. In such matters, the Courts should not bind itself by the shackles of technicalities.”

22. The decree drafted by this Court in L.P.A No. 3 of 1998 does contain a clause that the decree passed in Appeal No. 111 of 1985 is set aside and the Appeal is allowed. However, the judgment would show “the judgments and decrees of both the Trial Court as well as the learned Judge (Appellate) cannot be sustained. Consequently, both the Appeals are allowed”. This implies that in the Original Suit the decree of dismissal dated 23.3.84 is set aside and the Suit is to be decreed as prayed for.

23. The contention of the learned Counsel for the Respondent that the decree has been merged with the order of Hon'ble Supreme Court is also unsustainable. In any event, there is no special provision in Letters Patent Appeal to draft a decree. Therefore, while drafting a decree in L.P.A No. 3 of 1998, the Registry should have set forth the consequential relief of decreeing the Original Suit declaring the title of the Plaintiff therein (Petitioner) to the suit property and delivery of vacant possession and also for other reliefs as mentioned in the prayer paragraph of the Plaint.

24. It is a clerical mistake and an error apparent and this Court is empowered to exercise Section 152 of C.P.C to amend the same.

25. In the result, the Petition is allowed and the Registry is directed to amend the decree by inserting the following after the 1st paragraph of the decree.

“2. The Suit in O.S No. 5728 of 1981 is decreed declaring the title of the Plaintiff to the suit property and for delivery of vacant possession of the same after removing the superstructure thereon viz., Old No. 60-B, New No. 3, Loyyods Road, II lane, Royappettah, Chennai-14.

3. The Defendant shall handover vacant possession to the Plaintiff within a period of three months from the date of receipt of the copy of this decree.

4. that the Respondent shall pay the Appellant a sum of Rs. 125/- (Rupees one hundred and twenty five only) towards the cost of this L.P.A and the cost of the lower Court as when taxed by the Court below.”

26. Since Execution Petition is pending, the Court below is directed to accept the amended decree and dispose of the case within a period of three months from the date of receipt of this order. As far as the CMP is concerned, no costs.

S. Dhanalakshmi Petitioner v. M.K Satyanarayana Rao

Structured Summary of the Judgment — G.M. Akbar Ali, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

S. Dhanalakshmi Petitioner v. M.K Satyanarayana Rao

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