HONOURABLE SRI JUSTICE A.SANTHOSH REDDY
CIVIL REVISION PETITION No.5857 of 2016
ORDER:
This Civil Revision Petition is filed under Section 115 of the Code of Civil Procedure, 1908 (in short "C.P.C.") to set aside the order, dated 27.09.2016, in I.A.No.232 of 2016 in O.S.No.5 of 2011 on the file of Judge, Family Court, Warangal.
2. Heard learned counsel for the petitioner and learned counsel for the respondent. Perused the record.
3. The respondent-plaintiff filed suit in O.S.No.5 of 2011 seeking declaration that she is the legally wedded wife of the petitioner-defendant and to award maintenance of Rs.7,000/- per month and costs. The trial Court allowed the suit vide judgment and decree dated 16.09.2015. Aggrieved by the same, the petitioner preferred appeal in A.S.No.137 of 2016 before this Court and this Court vide order dated 08.03.2015 suspended the operation of the decree and judgment in O.S.No.5 of 2011, dated 16.09.2015. While so, the respondent filed I.A.No.232 of 2016 under Section 152 of C.P.C. before the trial Court to amend/correct the decree -2- incorporating/adding (i) Clause No.(iii) of the decree after the words before 5th of every month the words "past from the date of the suit and future" (ii) after Clause No.(iv) a new clause (v) may be added as "the Defendant is directed to pay the cost of Rs.4,704/- to the Plaintiff."
4. The trial Court allowed the application on 27.09.2016 and passed the following order:
" Heard the learned advocate for plaintiff/petitioner. Perused the record including the explanations submitted Sri T.Naveen Kumar, in S.R.No.751/2016 and Smt.K.Nirmala in S.R.No.752/2016 wherein they sought for excuse as this mistake was committed due to rush of work and therefore, in the circumstances stated in their explanations and having regard to the submissions made by learned advocate for petitioner and having regard to the contents of the petition affidavit of petitioner, Smt.V.Sulochana, the petition is allowed as prayed for directing the correction since it is purely a clerical mistake."
Aggrieved by the same, the present revision is filed.
5. Learned counsel for the petitioner submits that the trial Court committed error in passing the impugned order. He submits that since this Court has suspended the operation of the original judgment and decree passed by the trial Court , the trial Court had become functus officio and it would have to dismiss the application -3- filed by the petitioner for amendment of the decree. Therefore, he prays to set aside the impugned order. He has placed reliance on the decisions of Dwaraka Das v. State of M.P.1 and Bandlamudi Subbaiah & Sons Ltd., Guntur v. Central Ware Housing Corporation, Guntur2.
6. On the other hand, learned counsel for the respondent commending the order of the trial Court submits that drafting of the decree was not properly done and a mistake was committed due to rush of work and the said mistake was treated as clerical mistake. As such, the trial Court has rightly allowed the application as sought for.
7. Thus, on hearing the submissions of both the counsel and perusing the decisions relied on by the learned counsel for the petitioner, the only point that arises for consideration is; whether the impugned order is sustainable in law?
8. Coming to the present case, I.A.No.232 of 2016 was filed under Section 152 of C.P.C. to amend/correct the decree incorporating/adding in the decree as stated supra. It appears that 1 (1999) 3 Supreme Court Cases 500 2 2014 (1) ALD 152 -4- the trial Court has not taken into consideration the fact that the judgment and decree passed by it in O.S.No.5 of 2011 was suspended in A.S.No.137 of 2016 vide order dated 08.03.2016 and allowed the application filed by the petitioner on 27.09.2016 i.e. subsequent to filing of the appeal, which is erroneous.
9. In Dwaraka Das's case (1 supra), the Apex Court at para No.6 held as under:
"Section 152 C.P.C. provides for correction of clerical arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistakes by the Court of its ministerial actions and does not contemplate of passing effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, court or the tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. The correction contemplated are of correcting only accidental omission or mistakes and not all omissions and mistakes which might have been committed by the Court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 for which the proper remedy for the aggrieved party is to file appeal or review application......."
10. In view of the above settled position of law, after passing of the judgment, the Court becomes functus officio and the matter which has been judicially decided by the decree cannot be reopened by an application under Section 152 C.P.C. The errors arising from an accidental slip can be corrected subsequently not -5- only in a decree drawn up by a Ministerial Officer of the court, but even in a judgment pronounced and signed by the court. It is well-settled that the act of the court should not prejudice any party and courts have the duty to see that their records are true and represent the correct state of affairs. But, in the instant case, from the impugned order, it appears that the decree was not properly drafted and clerical mistake was occurred. As such, after taking the explanations from the concerned and having regard to the submissions, thee impugned order was passed treating as purely clerical mistake. As noted, since the appeal was filed by the respondent, the matter was already seized by this Court, the trial Court has become functus officio. Be that as it may, as per the settled position of law in Dwaraka Das's case supra, the trial Court ought not to have entertained the application and ordered for correction of decree as sought for, treating it as clerical mistake by exercising discretionary powers under Section 151 of C.P.C., which is erroneous and unsustainable.
10. In the light of my above discussion, I hold that the trial Court has committed grave error in passing the impugned order by -6- ordering for correction of the decree in an application filed under Section 152 of C.P.C. As such, the same is liable to be set aside.
11. In the result, the Civil Revision Petition is allowed. The impugned order is set aside. I.A.No.232 of 2016 stands dismissed. There shall be no order as to the costs. Pending miscellaneous applications, if any, shall stand closed.
______________________ A.SANTHOSH REDDY,J 03.01.2023 Nvl -7-