Madras High Court
R. Durairaj vs V. Subburaman (Died) on 21 August, 2023
CRP.No.3005 of 1997
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.08.2023
CORAM
THE HON'BLE MR.JUSTICE C.KUMARAPPAN
CRP(PD).No. 3005 of 1997 and
CMP(MD).Nos.5806 and 5807 of 2004
R. Durairaj Petitioner
Vs.
1.V. Subburaman (died)
2.K.Subbulakshmi
3.Mariammal
4.S.Panjaliammal
5.K.Nagarani
6.K.Hariharasudhan
7.K.Rajaram
8.N.Selvarani(died)
9.S.Devaki
(AA4 to 9 are brought on record as LRs of the
deceased R1 the deceased R1 vide Court, order
dated 14.03.2019 made in CMP.Nos.5805 to 5807/2004 and
CMP(MD).No.2350/2017 in CRP(MD).No.3005 o 1997)
10.Varathalakshmi
11.Saravanan
1/13
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CRP.No.3005 of 1997
12.Alagarsamy
13.Karthikeya Venkatachalapathi
14.Krishnaveni
(respondents 10 to 14 are brought on record
as LRs of the deceased 8th respondent vide Court, order dated
14.12.2021 made in CMP(MD).Nos.10782, 10783 and 10785 of 2021
in CRP(MD).No.3005/1997) ... Respondents
PRAYER : Civil Revision Petition filed under Section 115 CPC against
the Judgment and Decree, dated 05.08.1997 passed in I.A.No.1978/96 in
O.S.No.96/83 on the file of the District Munsif Court,. Aruppukkottai.
For Petitioner : Mr. V.R. Venkatesan
For Respondents 5 to 7
and 9 to 14 : Mr.S. Natarajan
Senior Counsel
ORDER
This Civil Revision Petition has been filed against the Judgment
and Decree, dated 05.08.1997 passed in I.A.No.1978/96 in O.S.No.96/83
on the file of the District Munsif Court, Aruppukkottai.
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CRP.No.3005 of 1997
2. The revision petitioner herein is the, petitioner / 3rd
defendant before the trial Court. The first respondent is the first
respondent / plaintiff before the trial Court. The respondents 2 and 3 herein
are the respondents 2 and 3 / defendants 1 and 2 before the Court below.
3. The learned counsel appearing for the revision petitioner
would submit that there was a suit against him for the relief of partition,
and that the Judgment was passed on 14.08.1986 dividing the suit
property. However, the decree was not drafted in consonance with the
Judgment. Therefore, prayed to amend the decree under Section 152
C.P.C., in consonance with the Judgment.
4. The learned counsel for the petitioner would draw the
attention of this Court in respect of the various findings of the Court below
and would submit that when the Courts below arrived at conclusion that
there was no division of property, the clause containing in the decree
allotment of western side of the property, become redundant and therefore,
would pray to allow this revision petition.
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CRP.No.3005 of 1997
5. However, the learned Senior Counsel appearing for the
respondents / plaintiffs strongly objected the said argument, and would
submit that the decree was drafted in consonance with the Judgment.
Therefore, he would submit that the finding of the Court below does not
call for any interference.
6. The sum and substances of contention putforth by the
learned counsel for the petitioner herein is that, the decree is not
in-consonance with the Judgment. In order to understand the whole gamut
of issue this Court deem it appropriate to extract the issues framed in the
suit. The same is find a place in Para No.6 of the Judgment of the suit in
O.S.No.96 of 1983. The same is reads as follows:
“1. jhth 'v” nrl;a+y; nrhj;J thjpf;F
ghj;jpa mDgtKs;sjh?
2. jhth 'v” nrl;a+y; nrhj;J thjpf;F
ghj;jpakhdJ ,y;iy vd;W $wpdhy; thjpf;F
jhth 'gp” nrl;a+y; nrhj;jpy; thjp Nfhhpa
ghfg; ghpfhuk; fpilf;ff; $bajh?
3. gpujpthjpfs; vjph; tof;Fiuapy;
fz;lgb jhth nrhj;J KOtijANk 2k;
gpujpthjpf;Fk; mth; fzth; Jiur;rhkp
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CRP.No.3005 of 1997
nul;bahUf;Fk; ,dhkhf tplg;gl;lJ vd;gJ
cz;ikahdjh? mJ rl;lg;gb nry;yj;jf;fjh?
4.gpujpthjpfSf;F jhth nrhj;jpy; mDgt
ghj;jpak; Vw;gl;lbUf;fpwjh?
5. ,t;tof;fpy; thjpf;F vd;d ghpfhuk;
nfhLf;fg;glf;$baJ?
$Ljy; tpdh 1. ,t;tof;F Ntr;rd; mz;L
mf;fpa+rd;]; vd;w Njhrj;jpdhy;
ghjpf;fg;gLfpwjh?
2. ,t;tof;F mtrpakhd fl;rpf;fhuh;fis
Nrh;f;ftpy;iy vd;w Njhrj;jhy;
ghjpf;fg;gl;Ls;sjh?
4. 1> 3 gpujpthjpfs; ey;nyz;zj;Jld; fpuak;
thq;fpAs;shh;fsh? mJ nry;yj;jf;fjh?
7. While answering those issues, the Court below in para No.
27 has held as follows:
“27. jhth nrhj;J “V”nrl;a+ypd; Nky; gFjp
thjpf;F ghj;jpakhdJ vd;gij ep&gpf;f Kbatpy;iy.
Nky; gFjpapy; 3 k;; gpujpthjp fl;blk; fl;bf;
nfhz;bUg;gjhy; thjpahy; Nky; gFjp mtUf;F ghj;jpak;
vd;gij ep&gpf;f Kbatpy;iy. mJ khhpak;khSf;F
xJf;fg;gl;Ls;sJ vd;;gjw;F Mjhuk; VJk; fpilahJ.
Mdhy; “gp” nrl;A+y; nrhj;jpy; thjp NfhhpAs;s ghf
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CRP.No.3005 of 1997
ghpfhuk; mtUf;Ff; fpilf;ff; $baJ jhd;. Mdhy; mNj
Neuj;jpy; 2k; gpujpthjp khhpak;khSf;Fk;> mtUila
fzth; Jiurhkp nul;bahUf;Fk; “gp” nrl;a+y; nrhj;J
KOtJk; ,dhkhf nfhLf;fg;gl;Ls;sJ vd;gJ
ep&gpf;fg;gltpy;iy. ,jdhy; gpujpthjpfSf;F jhth
nrhj;jpy; mDgt ghj;jpak; Vw;gltpy;iy. “gp” nrl;A
+y; nrhj;J KOtJk; gphpf;fg;glhky; nghJthf jhd;
cs;sJ vd;gJ ,e;j tof;fpy; njspthf
ep&gpf;fg;gl;Ls;sJ. vdNt tpdh 1 thjpf;F vjpuhfTk;>
gpujpthjpfSf;F MjuthfTk;> tpdh 2 thjpf;F
MjuthfTk;> gpujpthjpfSf;F vjpuhfTk;> tpdhf;fs; 3>
4 $Ljy; tpdhf;fs; 1> 3 gpujpthjpfSf;F vjpuhfTk;>
thjpf;F MjuthfTk; tpil mspf;fg;gLfpwJ.”
8. As per the above finding, the Court below has granted a
relief in respect of the issue No.2 in favour of the plaintiff. According to
issue No.2, the relief sought for is an allotment of western portion of the
“B” schedule property. The same was allowed in favour of the plaintiff
and granted as prayed for. As such, while perusing the decree, this Court
could not find any non confirmity or dissonance to the findings of the
Judgment. The plain reading of the Judgment indisputably the trial Court
gave a Judgment by granting the issue No.2 as prayed for qua allotment of
Western portion of the “B” Schedule property. The petitioner herein may
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CRP.No.3005 of 1997
have grievance that the said conclusion is not in consonance to the other
finding of the Judgment. However, we are only concerned with the
findings for the issue No.2, and the Court below has granted the second
prayer as prayed for as an answer to the issue No.2.
9. At this stage, the learned Senior Counsel appearing for the
respondents would invite the attention of this Court in respect of the First
appeal in A.S.No.66 of 1988 as against the decree and Judgment of the suit
in O.S.No.96 of 1999. In support of his submission, the learned Senior
Counsel has relied on the Judgment of the Hon'ble Supreme Court reported
in AIR 2001 SCC 1084 in the case of Jayalakshmi Coehlho Vs. Oswald
Joseph Coelho), and the Judgment reported in AIR 1999 SCC 1031
(Dwarka Das vs. State of Madhya Pradesh and another) and would
contend that under Section 152 CPC, the correctness of the reasoning of
the Judgment could not be gone into.
10. For ready reference, the relevant portion of the Judgment
are extracted as follows. In the Judgment reported in AIR 2001 SCC 1084
in the case of Jayalakshmi Coehlho Vs. Oswald Joseph Coelho), wherein
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CRP.No.3005 of 1997
at paragraph No.15 it is held as follows:
“15. 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 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. So far the legal proposition relied upon by the
learned Single Judge and the Honble Division Bench
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CRP.No.3005 of 1997
deciding the matter in its LPA jurisdiction, we are totally in
agreement with the same i.e. an unintentional mistake which
occurred due to accidental slip has to be rectified. The
question however which requires consideration is as to
whether on the facts of the present case and the principles
indicated above, it could be said that there was any clerical
or arithmetical error or accidental slip on the part of the
Court or not.”
(Emphasis supplied by this Court)
11. In the Judgment reported in AIR 1999 SCC 1031
(Dwarka Das vs. State of Madhya Pradesh and another) wherein at
paragraph No.6 it is held as follows:
“6. 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
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CRP.No.3005 of 1997
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. It implies that the Section cannot be pressed
into service to correct an omission which is intentional, how
erroneous that may be. It has been noticed that the courts
below have been liberally construing and applying the
province of Sections 151 and 152 of the CPC even after
passing of effective order in the Us pending before them. No
Court can under the cover of the aforesaid sections modify,
alter or add to the terms of its original judgment, decree or
order. In the instant case, the trial court had specifically
held the respondents-State liable to pay future interest only
despite the prayer of the appellant for grant of interest with
effect from the date of alleged breach which impliedly
meant that the court had rejected the claim of the appellant
in so far as pendente lite interest was concerned. The
omission in not granting the pendente lite interest could not
be held to be accidental omission or mistake as was
wrongly done by the trial court vide order dated 30th
November, 1973. The High Court was, therefore, justified in
setting aside the aforesaid order by accepting the revision
petition filed by the State.”
By relying the above Judgments, the learned Senior Counsel
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CRP.No.3005 of 1997
appearing for the respondents would contend that Section 152 C.P.C only
be used to rectify the arithmetical mistakes and typographical error. Here
as discussed hereinabove, the learned counsel for the petitioner contend
that the ultimate findings of the Judgment in para 27 of O.S.No.96 of 1983
is contrary to the observation made in the previous ratiocination of the
Judgment. But, such contentions are beyond the scope of the Sec.152
CPC.
12. Hear, what the petitioner wants an interpretation of the
Judgment with the aid of oral evidence, which could be done only by way
of regular appeal. Therefore, this Court is of the view that there is no
merits in this application and the order passed by the Court below does not
require any interference.
13. In the result this Civil Revision Petition is dismissed.
No costs. Consequently, the connected Miscellaneous Petitions are closed.
21.08.2023
Index : Yes / No
Internet : Yes / No
https://www.mhc.tn.gov.in/judis
CRP.No.3005 of 1997
trp
To
The District Munsif Court, Aruppukkottai.
https://www.mhc.tn.gov.in/judis
CRP.No.3005 of 1997
C.KUMARAPPAN, J.,
trp
CRP(PD).No. 3005 of 1997 and
CMP(MD).Nos.5806 and 5807 of 2004
21.08.2023
https://www.mhc.tn.gov.in/judis
