Bombay High Court
Ramprabhu Gopinath Kapse vs Shevantabai Baburao Kapse on 13 March, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:11916
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Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3558 OF 2022
Ramprabhu Gopinath Kapse ...Petitioner
Versus
Shevantabai Baburao Kapse ...Respondent
Mr. Ashutosh Kulkarni, i/b Akshay Kulkarni, for the
Petitioner.
Mr. Sameer Kumbhkoni, a/w Anjali Shaw and Chaitanya
Joshi, for the Respondent.
CORAM: N. J. JAMADAR, J.
DATED : 13th MARCH, 2025
JUDGMENT:
-
1. Rule. Rule made returnable forthwith and with the
consent of the learned Counsel for the parties, heard finally.
2. The petitioner - original defendant takes exception to an
order dated 26th October, 2018 passed by the learned District
Judge, Barshi, on an application filed under Section 152 of the
Code of Civil Procedure, 1908 ("the Code") for amendment in the
judgment and decree passed in Regular Civil Appeal No.204 of
1986, whereby the said application was allowed and paragraph
SANTOSH
SUBHASH No.2 of the judgment and operative part of the decree were
KULKARNI
ordered to be corrected.
3. Shorn of unnecessary details, the background facts
leading to this petition can be stated as under:
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3.1 The respondent instituted a suit for recovery of possession
of the properties bearing Block Nos.593 and 535 situated at
Javalgaon, Vairag, Taluka Barshi and mesne profit . The suit
properties were described as Block No.593 and Block No.535
with a suffix "1/2 share". By a judgment and order dated 30 th
January, 1986, the learned Civil Judge was persuaded to
dismiss the suit returning a finding that the defendant proved
that he had perfected his title to the suit land by way of adverse
possession.
3.2 Being aggrieved, the plaintiff preferred an appeal being
Civil Appeal No.204 of 1986. By a judgment and order dated 25 th
September, 1990, the learned District Judge allowed the appeal
and reversed the decree passed by the trial court. The learned
District Judge directed as under:
"..... The defendant - respondent is directed to give
possession of the lands bearing Block Nos.593 and 535 of
village Javalgaon, Taluka Barshi to the plaintiff - appellant. For
mesne profits, separate enquiry under 0.20 rule 12 (c) C.P.C. is
directed."
3.3 The defendant preferred second appeal being
SA/618/1990. By an order dated 7th February, 1991 this Court
dismissed the second appeal opining that the judgment passed
by the first Appellate Court did not suffer from any legal
infirmity.
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3.4 In the execution proceedings, the defendant filed an
application contending that the decree was not executable. The
plaintiff had instituted the suit for recovery of ½ portion of
Block No.535 and Block No.593 and the decree passed by the
First Appellate Court was for the entire Block Nos.593 and 535.
Thus, the decree being a nullity, it was not executable. The
execution proceedings were disposed of by an order dated 14 th
September, 2015.
3.5 The plaintiff, thereafter, preferred an application to amend
the judgment and decree, purportedly under Section 151 read
with Section 152 of the Code. Two amendments were sought.
Firstly, the area of Block No.593 was sought to be corrected to
1H. 05Are and, secondly, ½ portion was claimed out of Block
No.535. The defendant resisted the application.
3.6 By the impugned order, the learned District Judge was
persuaded to allow the application observing, inter alia, that the
mistake in the operative part of the decree passed in
RCA/204/1986 appeared to be an accidental error. If the
judgment is read as a whole, the learned District Judge
intended to pass a decree for possession in respect of entire
Block No.593 and ½ portion of Block No.535. Inadvertently, in
the operative part, the possession of Block Nos.593 and 535, as
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a whole, was ordered to be delivered. It was, therefore,
necessary to correct the area in respect of Block No.593 and
restrict the decree to the ½ portion of Block No.535. The learned
District Judge directed as under:
"The defendant - respondent is directed to give possession of
land admeasuring 1H 05R bearing B.No.593 and ½ share out of
2H 82R bearing B.No.535 of village Javalgaon, Taluka Barshi to
the plaintiff - appellant."
4. Being aggrieved, the defendant has invoked the writ
jurisdiction.
5. Mr. Kulkarni, the learned Counsel for the petitioner, urged
that the corrections in the decree directed to be carried out by
the learned District Judge are clearly beyond the scope of
amendment permissible under Section 152 of the Code. The
learned District Judge has oversimplified the matter by
observing that the error occurred on account of accidental slip.
No other reason has been ascribed. Taking the Court through
the description of the property in the plaint Mr. Kulkarni urged
with tenacity that the qualification "1/2 portion" governed both
Block Nos.593 and 535. That was the plain and simple prayer of
the plaintiff. Thus, the decree passed by the First Appellate
Court in RCA/204/1986 for the entire Block Nos.593 and 535
was clearly unexecutable and was lawfully so ordered by the
Executing Court. By the impugned order, the learned District
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Judge, thus, could not have corrected the said judgment and
decree by resorting to the provisions contained in Section 152 of
the Code.
6. Mr. Kulkarni further submitted that there was a serious
doubt about the proprietary title of the predecessor-in-title of
the plaintiff over entire Block Nos.593 and 535. To this end, Mr.
Kulkarni took the Court through the observations in the
judgment of the First Appellate Court, especially paragraph 15.
As there was a serious dispute about the title of the husband of
the plaintiff over entire Block Nos.593 and 535, the learned
District Judge could not have ordered the correction in the
decree without holding a proper enquiry. In the least, the issue
is required to be tried and adjudicated. Thus, the impugned
order deserves to be quashed and set aside, submitted Mr.
Kulkarni.
7. In opposition to this Mr. Kumbhkoni, the learned Counsel
for the respondent, submitted that the learned District Judge
was well within his rights in ordering the correction in the
judgment and decree. At no point of time, there was any cloud
over the title of the husband of the plaintiff over entire Block
No.593. The documents before the Court clinched the issue
about the exclusive ownership of the predecessor-in-title of the
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plaintiff over Block No.593. Even, the trial court had returned
the finding that the plaintiff had exclusive title over the suit
property. But had dismissed the suit on an incorrect premise
that the defendant had perfected his title over the suit property
by way of adverse possession. An inadvertent omission in the
decree passed by the First Appellate Court to clarify that
possession of "½ portion of Block No.535" was to be delivered
has resulted in a delay of almost 35 years in the execution of the
decree. The learned District Judge has, thus, correctly exercised
the jurisdiction to correct the judgment and decree, urged Mr.
Kumbhkoni.
8. Reliance was placed by Mr. Kumbkoni on the judgments of
this Court in the cases of Rahul Trading Corporation and
another vs. Bernard Anthony Pereira and others 1 and Laxman
Ramji Taske (since deceased) through LR Saraswati Laxman
Taske and ors. vs. Kewalabai Kisan Pawade and ors.2.
9. In the wake of the facts of the case and the rival
submissions canvassed across the bar, the question as to
whether the District Court could have amended the judgment
and decree by invoking the power under Section 152 of the
Code, wrenches to the fore. Thus, to start with, it may be
1 2023 (2) All M.R. 659.
2 (2017) 6 Mh.L.J. 224.
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apposite to appreciate the nature, extent and limits of the
powers of the Court to correct a judgment, decree or order.
Section 152 of the Code reads as under:
"Section 152. 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."
10. On a plain reading of the text of Section 152, it becomes
evident that the Court is empowered to correct the clerical or
arithmetical mistakes in judgments, decrees or orders or errors
arising therein from any accidental slip or omission. The use of
the expression 'may' emphasises that the power is discretionary
and, in a sense, enabling in nature. Likewise, the use of the
expression, "at any time" indicates that the stage of the
proceeding does not matter. Such a correction can be made at
any time. The use of the expression "either of its own motion or
on the application," underscores the legislative intent that it was
necessary to empower the Court to correct its record suo motu
or on the application of any of the parties.
11. The aforesaid expressions of wide amplitude, however, do
not imply that the power conferred on the Court under Section
152 is in the nature of review. The corrections, which can be
legitimately made by the invoking Section 152 are only those
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which fall in the category of, "clerical or arithmetical mistakes"
or "errors arising from accidental slip or omission". Any
correction, which touches upon merits of the case or adds to or
substracts from the relief that has been denied or granted, as
the case may be, falls beyond the purview of Section 152 of the
Code. On a true construct, the avowed purpose of vesting of the
general power in the Court to amend its judgment, decree or
orders, is to ensure that the act of the Court does not cause
prejudice to the parties. A reference to few judgments of the
Supreme Court would illuminate the path.
12. In the case of State of Punjab vs. Darshan Singh3 the
Supreme Court expounded the nature and import of the power
contained in Section 152 of the Code as under:
"12. Section 152 provides for correction of clerical or
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, the same becomes final subject to
any further avenues of remedies provided in respect of the same
and the very Court or the tribunal cannot, on mere change of
view, is not entitled to vary the terms of the judgments, decrees
and orders earlier passed except by means of review, if
statutorily provided specifically therefor and subject to the
conditions or limitations provided therein. The powers under
Section 152 of the Code are neither to be equated with the
power of review nor can be said to be akin to review or even said
to clothe the Court concerned under the guise of invoking after
the result of the judgment earlier rendered, in its entirety or any
portion or part of it. The corrections contemplated are of
3 2004(1) SC 328.
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correcting only accidental omissions 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 as if it is looking into it
for the first time, for which the proper remedy for the aggrieved
party if at all is to file appeal or revision before the higher forum
or review application before the very forum, subject to the
limitations in respect of such review."
(emphasis supplied)
13. In the case of Jayalakshmi Coelho vs. Oswald Joseph
Coelho4 the legal position was enunciated as under:
"13. So far 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 and whatever is
intended by the court while passing the order or decree must be
properly reflected therein, otherwise it would only be destructive
to the principle of advancing the cause of justice.....
14. As a matter of fact such inherent powers would generally
be available to all courts and authorities irrespective of the fact
whether the provisions contained under Section 152 C.P.C. may
or may not strictly apply to any particular proceeding. In a
matter where it is clear that something which the Court
intended to do but the same was accidentally slipped or any
mistake creeps in due to clerical or arithmetical mistake it
would only advance the ends of justice to enable the Court to
rectify such mistake. But before exercise of such power the
Court must be legally satisfied and arrive at a valid finding that
the order or the decree contains or omits some thing which was
intended to be otherwise that is to say while passing the decree
the court must have in its mind that the order or the decree
should be passed in a particular manner but that intention is
not translated into the decree or order due to clerical,
arithmetical error or accidental slip. The facts and
circumstances may provide clue to the fact as to what was
intended by the court but unintentionally the same does not
find mention in the order or the judgment or something which
was not intended to be there stands added to it. The power of
rectification of clerical, arithmetical errors or accidental slip
does not empower the court to have a second thought over the
matter and to find that a better order or decree could or should
be passed.. There should not be re-consideration of merits of
4 2001(2) SC 181.
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the matter to come to a conclusion that it would have been
better and in the fitness of things to have passed an order as
sought to be passed on rectification. On a second thought court
may find that it may have committed a mistake in passing an
order in certain terms but every such mistake does not permit
its rectification in exercise of Courts inherent powers as
contained under Section 152 C.P.C. It is to be confined to
something initially intended but left out or added against such
intention.
(emphasis supplied)
14. In K. Rajamouli vs. A.V.K.N. Swamy5, where the High
Court has granted interest pendente lite, which was not
awarded by the trial court, the Supreme Court held that the
High Court could not have resorted to Section 152 of the Code to
award pendente lite interest. The observations of the Supreme
Court in paragraph 6 are instructive and hence extracted below:
"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. and Am, [1999] 3 SCC 500 , it was
held that the omission in not granting the pendente lite interest
could not be held to be accidental omission or mistake and
therefore, neither the trial Court nor the appellate Court has
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
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.
5 (2001) 5 Supreme Court Cases 37.
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B. Kanta Rao, learned counsel appearing for the respondent
then relied upon a decision of this Court in Janakiramma lyer v.
Nilakanta lyer, [1962] suppl. 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 'mesne1. This was
the case of typographical mistake and, therefore, not applicable
to the present case."
(emphasis supplied)
15. In the case of Niyamat Ali Molla vs. Sonargon Housing Co-
operative Society Ltd. and ors.6 the nature of the power of the
Court to correct the record of the Court was expounded by the
Supreme Court as under:
"19. Code of Civil Procedure recognizes the inherent power of
the court. It is not only confined to the amendment of the
judgment or decree as envisaged under Section 152 of the code
but also inherent power in general. The courts also have duty to
see that the records are true and present the correct state of
affair. There cannot, however, be any doubt whatsoever that the
court cannot exercise the said jurisdiction so as to review its
judgment. It cannot also exercise its jurisdiction when no
mistake or slip occurred in the decree or order. This provision,
in our opinion, should, however, not be construed in a pedantic
manner. A decree may, therefore, be corrected by the Court both
in exercise of its power under Section 152 as also under Section
151 of the Code of Civil Procedure. Such a power of the court is
well recognized."
(emphasis supplied)
16. In the light of the aforesaid exposition of law, it has to be
seen whether the judgment and decree passed by the First
Appellate Court suffered from such error or omission which falls
within the ambit of Section 152 of the Code. Conversely,
whether the correction ordered to be carried out by the learned
6 (2007) 13 SCC 421.
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District Judge partakes the character of a review of the
judgment and order passed by the First Appellate Court.
17. For an answer, in my considered view, recourse is required
to be made not only to the judgment of the First Appellate Court
but also the judgment of the trial court.
18. First and foremost, the submission of Mr. Kulkarni that
the suffix "½ share" governed both Block Nos.593 and 535 and,
therefore, the decree could not have been passed in respect of
entire Block No.593, does not merit acceptance. There is no
indication in the plaint that the said suffix "½ share" which
appeared below the property described at Sr. No.12 i.e. Block
No.535, also governed the property described at Sr. No.1 i.e.
Block No.593.
19. Mr. Kulkarni then invited the attention of the Court to the
observations in paragraph 2 of the judgment in RCA/204/1986.
In the said paragraph as well, the learned District Judge after
the description of the suit properties i.e. Block Nos.593 and
535, added the words, "to the extent of ½ share". This
description of the suit property in paragraph 2 of the judgment
of the First Appellate Court, does not appear to be of decisive
significance. Properly construed the said narration just
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described the property as was described in paragraph 1 of the
plaint.
20. Thirdly, Mr. Kulkarni would urge there was a serious
doubt about the entitlement of the husband of the plaintiff to
entire Block No.593. Attention of the Court was invited to
paragraph 15 of the judgment of the First Appellate Court.
21. I have carefully perused the observations in paragraph 15.
The learned District Judge has categorically recorded that the
suit property was not ancestral. Though the learned District
Judge has observed that the plaintiff's husband Baburao Kapse
and Sandipan Disale had jointly purchased the land bearing
Survey No.88/2 which corresponds to Block No.593, yet, in the
very same paragraph there is a clear and categorical reference
to the fact that original Survey No.88/2 corresponds to Block
No.535 and that was acquired jointly by Sandipan Disale and
Baburao Kapse, the husband of the plaintiff. Thereafter, the
said Block No.535 was mutated in the name of Baburao and
Sandipan Disale. It, thus, becomes abundantly clear that the
plaintiff's husband had ½ share in Block No.535.
22. In contrast to this, on the basis of the record of rights in
respect of land bearing Survey No.101/5 (old), which
corresponds with Block No.593, the learned District Judge has
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recorded that the husband of the plaintiff had purchased the
said land bearing Block No.593 from Nagnath Kashinath
Kulkarni and thenceforth the said land was continuously shown
in the name of Baburao Kapse alone, till his death. These
findings of facts in my considered view, take the matter beyond
the pale of controversy.
23. The aforesaid position becomes even more clear and
beyond cavil, from the observations of the trial court in the
judgment in RCS/620/1980. In paragraph 19 of the judgment
the trial court has categorically observed that the entries in the
record of rights clearly showed that the deceased husband of
the plaintiff had purchased Block Nos.573 and 593 individually
and Block No.535 alongwith Sandipan Disale. The trial court
had proceeded on the premise that there was no dispute about
the exclusive title of the deceased husband of the plaintiff over
Block No.593. It is a different matter that the trial court erred in
holding that the defendant had perfected the title by
prescription.
24. The matter can be looked at from another perspective.
Both the trial court and the First Appellate Court have recorded
categorical findings that the plaintiff had proved her title over
Block No.593 and ½ portion of Block No.535. The claim of the
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defendant was of acquisition of title by prescription. That claim
was negatived by the First Appellate Court. The said order was
upheld by the this Court.
25. Consequently, even if the Court looks at the substance of
the matter, the defendant - petitioner has no semblance of right,
title and interest in Block No.593 and ½ portion of Block
No.535. Viewed through this prism, the impugned order passed
by the learned District Judge directing the correction in the
judgment and decree appears to be in consonance with the
object of vesting power in the Court to correct its own record so
that its incorrect act or record does not cause prejudice to a
party.
26. In the totality of circumstances, the learned District Judge
was justified in holding that an error had crept in, in the
operative part of the decree in RCA/204/1986 in not clarifying
that the decree for possession was restricted to ½ share of Block
No.535. The said correction necessarily flows from the
observations and findings of the First Appellate Court in the
body of the judgment. It was essentially a mistake in the
description of the property in the operative part of the decree.
27. Mis-description of the suit property can be corrected by
the Court in exercise of the power under Section 152 and 151 of
the Code, even post decree. A useful reference, in this context,
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can be made to a judgment of the Supreme Court in the case
Pratibha Singh and Anr. V/s. Shanti Devi Prasad and Anr . AIR
2003 SC 643 wherein with reference to the power to correct the
description of the suit property, post passing of the decree, the
Supreme Court enunciated as under :
"17. When the suit as to immovable property has been
decreed and the property is not definitely identified, the defect in
the Court record caused by overlooking of provisions contained in
O. 7 R. 3 and O. 20 R. 3 of the C.P.C. is capable of being cured.
After all a successful plaintiff should not be deprived of the fruits
of decree. Resort can be had to S. 152 or S. 47 of the C.P.C.
depending on the facts and circumstances of each case - which of
the two provisions would be more appropriate, just and
convenient to invoke. Being an inadvertent error, not affecting the
merits of the case, it may be corrected under S. 152 of the C.P.C.
by the Court which passed the decree by supplying the omission.
Alternatively, the exact description of decretal property may be
ascertained by the Executing Court as a question relating to
execution, discharge or satisfaction of decree within the meaning
of S. 47 C.P.C. A decree of a competent Court should not, as far
as practicable, be allowed to be defeated on account of an
accidental slip or omission. In the facts and circumstances of the
present case we think it would be more appropriate to invoke S.
47 of the C.P.C."
(emphasis supplied)
28. The conspectus of aforesaid consideration is that there is
no such infirmity in the impugned order as to warrant
interference by this Court in the exercise of writ jurisdiction.
The petition, therefore, deserves to be dismissed.
29. Hence, the following order:
:ORDER:
(i) The petition stands dismissed.
(ii) Rule discharged.
No costs.
[N. J. JAMADAR, J.]
