Madras High Court
Rani vs V. Sivaraj … on 10 June, 2021
CRP (NPD) No.1163 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.06.2021
CORAM
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
CRP (NPD) No.1163 of 2021
and
CMP No.8926 of 2021
1. Rani
S.Shanmugam (died)
2. S. Narayanan
3. S. Murugan …Petitioners/Defendants
Vs.
V. Sivaraj …Respondent/Plaintiff
Civil Revision Petition filed under Article 227 of Constitution of
India, against the fair and decreetal order passed in I.A. No.1 of 2019 in
O.S. No.75 of 2007 by the Principal District Munsif, Kancheepuram, dated
18.09.2019 to be set aside.
For petitioners ... Mr.A.S. Sathiesh Kumar
1/10
https://www.mhc.tn.gov.in/judis/
CRP (NPD) No.1163 of 2021
ORDER
(Heard through video conference)
This Civil Revision Petition has been filed by the petitioners, who are
the defendants in the suit, aggrieved by the order dated 18.09.2019 in I.A.
No.1 of 2019 in O.S. No.75 of 2007 passed by the Trial Court under Section
152 of the Code of Civil Procedure (for brevity “CPC”), whereby, the Trial
Court has amended the decree.
2. The respondent, who is the plaintiff in the suit in O.S. No.75 of
2007, has sought for a specific performance of an agreement of sale, dated
20.11.2006 against the petitioners/defendants. He had sought for the
following reliefs in the suit O.S. No.75 of 2007:
a) to grant a decree in favour of the Plaintiff for Specific
Performance of Executed Sale Deed dated 20.11.2006 by directing the
defendants to register the executed sale deed in favour of the plaintiff and
on their failure, the Hon'ble Court may be pleased to register the Deed in
favour of the Plaintiff and deliver the possession of the suit properties.
b) award the cost of the suit.
c) pass such further or other relief as this Hon'ble Court deem fit
and proper in the circumstances of the case.
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CRP (NPD) No.1163 of 2021
3. The Trial Court has passed an ex parte decree in favour of the
respondent/plaintiff on 21.01.2008. The operative portion of the judgment,
dated 21.01.2008 reads as follows :
“gpujpthjpahy; 20/11/2006 md;W jhth
brhj;jpw;F vHjpf;bfhLj;j fpuag;gj;jpuj;ij
thjpapd; bgaUf;F gjpt[ bra;J jhth brhj;jpd;
Rthjpdj;ij thjpapd; trk; xg;gilf;f
ntz;Lbkd;W Vw;wij Mw;Wjy; ghpjhuk; nfhhpa[k;.
bryt[j;bjhif nfhhpa[k; jhf;fy; bra;ag;gl;lJ
,j;jhth.
thjp jug;gpy; th/rh/1 tprhhpf;fg;gl;L
th/rh/M/1 kw;Wk; 2 FwpaPL bra;ag;gl;lJ/ tHf;F
epUgpf;fg;gl;lJ/ tHf;F bryt[j;bjhifa[lk;
nfhhpago jPh;g;ghiz bra;ag;gl;lJ/”
4. Thereafter, the respondent/plaintiff noticed the following omission
in the decree :
“In case of failure of the petitioners/defendants to
execute and register the sale deed, the Court will have to
execute the same in favour of the respondent/plaintiff”.
Hence, the respondent/plaintiff filed an application under Section 152 CPC
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CRP (NPD) No.1163 of 2021
on the ground that the decree has omitted by accidental slip to include the
following sentence “on their failure, the Court shall execute and register
the sale deed in favour of the respondent / plaintiff”.
5. The Trial Court, by its order dated 18.09.2019, which is under
challenge in this revision in I.A. No.1 of 2019, has allowed the application
filed by the respondent/plaintiff under Section 152 CPC.
6. The petitioners/defendants have raised the following grounds in
this revision for challenging the impugned order dated 18.09.2019 passed in
I.A.No.1 of 2019 in O.S. No.75 of 2007 :
a) The application under Section 152 CPC has been filed
by the respondent/plaintiff after a lapse of 11 years from the date
of the judgment dated 21.01.2008;
b) Section 152 CPC will come into play only when there
are clerical or arithmetical mistakes in the judgment;
c) The impugned order dated 18.09.2019 passed by the
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CRP (NPD) No.1163 of 2021
Trial Court will amount to altering the earlier judgment dated
21.01.2008; and
d) The impugned order dated 18.09.2019 passed by the
Trial Court will amount to reviewing the earlier judgment dated
21.01.2008 and is not permissible under law.
7. Heard Mr.A.S.Sathiesh Kumar, learned counsel for the
petitioners/defendants and perused the materials placed on record before
this Court. Since no adverse orders are passed against the
respondent/plaintiff, notice to the respondent/plaintiff is dispensed with.
8. This Court does not find any merit in the grounds raised by the
petitioners/defendants in this revision for the following reasons :
i) The respondent/plaintiff had sought for the following reliefs in the
plaint seeking for specific performance of an agreement of sale:
a) to grant a decree in favour of the Plaintiff for Specific
Performance of Executed Sale Deed dated 20.11.2006 by directing the
defendants to register the executed sale deed in favour of the plaintiff and
on their failure, the Hon'ble Court may be pleased to register the Deed in
favour of the Plaintiff and deliver the possession of the suit properties.
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CRP (NPD) No.1163 of 2021
b) award the cost of the suit.
c) pass such further or other relief as this Hon'ble Court deem fit
and proper in the circumstances of the case.
ii) Admittedly, an ex parte decree has been passed granting the
relief of the specific performance in favour of the respondent/plaintiff.
iii) In the judgment dated 21.01.2008 passed in O.S. No.75 of
2007, even though the respondent/plaintiff in his prayer in the plaint had
sought for a direction from the Court that in case of failure of the petitioners
/ defendants to execute the sale deed, the Court will have to execute the sale
deed in his favour, whereas, the Trial Court has omitted to include the same
in its operative portion of its judgment and decree dated 21.01.2008.
iv - a) Section 152 CPC reads as follows :
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.
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CRP (NPD) No.1163 of 2021
b) Section 152 CPC is an inherent power of the Court. Inherent
powers of the Court are those powers which may be applied by the Court to
perform full and complete justice between the parties before it.
c) As seen from Section 152 CPC, the Court is empowered to amend
its judgment, decrees or orders, if there were clerical or arithmetical
mistakes due to any accidental slip or omission and it can be done on its
own motion or on an application filed by any of the parties. The instant suit
is a suit for specific performance and the trial Court has been convinced that
the respondent/plaintiff is entitled for a specific performance decree. The
respondent/plaintiff has also sought for the relief, which was left out by the
Trial Court in its judgment and decree dated 21.01.2008, which was
amended under the impugned order dated 18.09.2019. The omission that
was made by the Trial Court is only in the nature of a default clause that, in
the event of the petitioners/defendants failing to execute the sale deed in
favour of the respondent/plaintiff, the Court shall execute the sale deed in
favour of the respondent/plaintiff. Therefore, this Court is of the considered
view that the omission to include the aforesaid relief is only a clerical
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CRP (NPD) No.1163 of 2021
mistake, which has been accidentaly omitted to be included in the judgment
and decree dated 21.01.2008 passed in O.S. No.75 of 2007.
d) When the Trial Court has unequivocally held that the respondent /
plaintiff is entitled for specific performance, the second part of the prayer
sought for by the plaintiff ought to have been naturally granted, which has
been omitted and in the considered view of this Court is an inadvertent
omission. Therefore, this Court is of the considered view that the omission
to include the relief “that in case the petitioners / defendants fails to execute
the sale deed, the Courts shall execute the sale deed in favour of the
respondent / plaintiff” by the Trial Court in its judgment and decree dated
21.01.2008 is an accidental slip which will have to be necessarily amended
under Section 152 CPC.
v) Insofar as the inherent powers of the Courts are concerned, which
is also the case as regards Section 152 CPC, the question of limitation will
not arise as the limitation Act or the CPC does not bar the amendment of
the decree at any point of time.
vi) The judgment and decree dated 21.01.2008 passed in O.S.
No.75 of 2007, which was amended under the impugned order dated
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CRP (NPD) No.1163 of 2021
18.09.2019 in I.A.No.1 of 2019, is an ex parte decree. If at all the
petitioners/defendants are aggrieved by the ex parte decree, they have to
file necessary application to set aside the ex parte decree showing sufficient
grounds. Instead of doing so, the petitioners/defendants have wrongly
approached this Court challenging the impugned order passed under Section
152 CPC, which is not maintainable under law.
9. This Court does not find any infirmity or illegality in the impugned
order passed by the Trial Court and absolutely there is no merit in the Civil
Revision Petition. Accordingly, the Civil revision Petition stands
dismissed. No costs. Consequently, connected miscellaneous petition is
closed.
10.06.2021
Index: Yes/ No
Internet: Yes/No
Speaking Order/Non-speaking Order
vsi2/nsd
To
The Principal District Munsif,
Kancheepuram.
https://www.mhc.tn.gov.in/judis/
CRP (NPD) No.1163 of 2021
ABDUL QUDDHOSE, J.
vsi2
CRP (NPD) No.1163 of 2021
10.06.2021
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