Andhra HC (Pre-Telangana)
Sagi Bangarraju vs State Bank Of India, Visakhapatnam on 26 February, 2002
Equivalent citations: 2002(4)ALD285, 2003(2)ALT20
ORDER
1. In this Second Appeal, an important question of law falls for consideration. The defendant in O.S. No.230/72 on the file of the Principal Subordinate Judge, Visakhapatnam is the appellant.
2. The respondent filed the suit for recovery of an amount of Rs.9996/- through a preliminary decree for redemption of mortgage. The suit was decreed on 31.7.1973. Four months time was granted for the appellant herein for payment of the amount failing which the property was to have been brought under sale. The appellant paid an amount of Rs.3,000/- after decree.
3. The respondent filed I.A. No.939/76 under Section 152 C.P.C. for correction of the decree on the ground that the decree drawn by the trial Court was not in conformity with the prescribed form. The I.A. was ordered on 21.4.1979. Thereafter, the respondent filed I.A. No.101/81 on 18.11.1980 for final decree proceedings. The Executing Court dismissed the I.A. as time barred through its order dated 24.8.1983.
4. The respondent filed A.S. No.119/85 against the order in IA. No.101/81 in the Court of the III Additional District Judge, Visakhapatnam. The lower appellate Court through its judgment dated 2.3.1990 allowed the appeal and directed the final decree proceedings to go on.It is the order of the lower appellate Court in A.S. No.119/95 which is challenged in this Second Appeal.
5. Sri A.S.C. Bose, learned Advocate appearing for Sri. C. Poornaiah, learned counsel for the appellant submits that I.A. No.101/81 filed by the respondent was clearly time barred. It is his contention that the view taken by the lower appellate Court that the respondent was entitled to file the application within three years from the date of amendment cannot be supported in law.
6. Though notice was served upon the respondent, it did not choose to enter appearance.
7. In this case it is necessary to note a few dates.
8. The suit was decreed on 31.7.1973 by granting four months time for the appellant herein to pay the decretal amount failing which the mortgage property was to be brought to sale. The four months period expired by 30.11.1973. The limitation for filing application for final decree proceedings is three months from the expiry of the due date. Therefore, the last date for filing application for final decree proceedings was 30.11.1973. Claiming that there was some clerical or typographical error in drawing the preliminary decree, the respondent filed I.A. No.939/76 under Section 152 of C.P.C. on 28.10.1976, i.e. just two days before the expiry of limitation. The I.A. was ordered on 21.4.1979. I.A. No.101/81 for the final decree proceedings was filed on 18.11.1980. The Executing Court took the view that filing of an application under Section 152 C.P.C.does not have the effect of stopping the limitation and as such rejected the I.A.
9. The lower appellate Court on the other hand took the view that a fresh period of three years is available to the respondent from the date of correction of the decree i.e. from 21.4.1979 and since the I.A. was filed within three years from that date, the application was within limitation.
10. Whenever, a party to suit finds that a decree is defective or wrong, two curses are open to him. One is to seek review by filing an application under Order 47 Rule 1 of C.P.C. and the other is to seek correction by filing an application under Section 152 C.P.C.In the former, the correction ordered by the Court would bring about altogether a new decree and it becomes effective from the date of the order in the review. However, in the case of the latter, the decree as it was drawn in the first instance will continue to hold good and any correction of clerical or typographical mistake, would not bring about any new decree. It is also to be noticed in this context that while the law prescribes periods of limitation for filing of review, no such limitation is prescribed for seeking correction under Section 152 of C.P.C. The language of Section 152 C.P.C. itself is clear on this aspect. The underlying principle is that rules of limitation are applicable to acts to be performed by litigants and not to the acts which the Court has to perform either suo motu or on being asked. Review is an act which emanates from the party whereas the correction is a process to be undertaken by the Court itself to put its record straight.
11. The consequences flowing from the review on the one hand and correction on the other are aptly described by a Division Bench of the Punjab High Court in SUBA SINGH vs. SADHU SINGH & OTHERS (1).
"When a judgment or decree has been amended it has to be seen whether the procedure prescribed by O.47 was followed by the Court and the amendment in the decree or judgment was ordered as a result of he review proceeding. If it is so an appeal would lie from the amended judgment or decree only. It is only where the correction of an error or mistake in the judgment or decree has been made under S.152 a fresh judgment or decree does not come into existence and the appeal from the decree as originally passed would be competent.
Under S.152 all that the Court does is to rectify a clerical error arising from an accidental slip or omission and there is a duty on the Court to correct it whenever it comes to its notice or is brought to its notice by any of the parties. Use can be made of the powers under that Section if the intention of the Court is clear and by some clerical error or omission that intention is left in doubt or is not property effectuated and the Court is bound to correct such errors or mistakes which fall within the ambit of Section 152. But the considerations which prevail when an application for review is entertained and any amendment in a judgment or decree is directed under O.47, are different. A new judgment or decree comes into existence and supersedes the original ones when it is amended in proceedings under O.47. But that result does not follow when any correction or amendment is directed or made under S.152. Therefore, any kind of amendment or correction made in a judgment or review under O.47 or under S.152 does not bring into existence a fresh judgment or decree from which alone an appeal would be competent."
12. Before arriving at such a conclusion, the Punjab High Court was faced with conflicting of opinion on the subject of Calcutta High Court, Allahabad High court and the Lahore High Court on the one hand and the Madras High Court on the other. The Punjab High Court had adopted the Madras view. It is not necessary to refer to the conflicting views in this case.
13. While this is the consequence of review of correction, it now needs to be seen as to whether whenever a decree is corrected under Section 152 of C.P.C., the period of limitation for seeking execution of the same would start from the date on which it was originally processed or from the date on which it was subsequently amended. On the principle that the amendment by the Court under Section 152 C.P.C. does not bring about a new decree, it has been held way back in 1923 by the Allahabad High Court in RAMCHANDAR vs. JAIMAL & OTHERS (2) that the correction or amendment of a decree under Section 152 does not have the effect of postponing the limitation and the amended decree cannot be said to be a new decree. A Division Bench of the Nagpur High Court in ABDUL RAUF vs. NANA BAI & OTHERS (3) took the view that the right to apply for mortgage accrues on the date specified in the decree and not any other date as long as the date in the preliminary decree is not amended. Their Lordships took the view that the decree amended by the Court, is deemed to bear the date of original decree and the amendment does not give rise to or affect the rights of the parties and no appeal lies against the same. Dealing with the contentions that the limitation should stop running once the application for amendment is filed, the Court observed as under:
"It may be pointed out that a curious result would ensue if we were to uphold the plaintiff's contention. Suppose, the application for amendment of the decree made by a party to the suit is rejected, what would be the position ?
Would time start running afresh from the date of rejection or would time which had already started running be deemed to have been running even during the pendency of the application ? There is no principle of law on the basis of which itcould be said that even where an application for amendment of a decree is rejected, time would start running afresh from the date of rejection of the application."
and concluded that :
"The "right to apply" in the case of a mortgage decree would accrue on the date specified in the decree itself and so long as that date is not amended, limitation must be deemed to have begun to run from that date and no other."
14. The Executing Court rejected the application placing reliance upon the above judgment of the Nagpur High Court. However, the lower appellate Court took the view that the aforementioned judgment of the Nagpur High Court cannot be applied to the facts and circumstances of the case. I do not see any distinguishing features in the present case which make the ratio of the Nagpur High Court inapplicable. In my view, it clearly applies to the facts of the case.
15. The Second Appeal is therefore allowed and the judgment of the lower appellate Court is set aside.
16. In the result, the I.A. No.101/81 shall stand dismissed as barred by limitation. No costs.