Kerala High Court
Kuruvilla Thomas, Maliakel, ... vs State Bank Of Travancore on 8 January, 1988
Equivalent citations: AIR1989KER68, [1987]62COMPCAS320(KER), AIR 1989 KERALA 68, (1988) 2 CIVLJ 165, (1988) 1 BANK CLR 478, (1988) 1 KER LT 563, (1988) 21 REPORTS 633, (1988) ILR(KER) 2 KER 230, ILR (1988) 2 KER 230, (1988) 1 KER LJ 348, (1989) BANKJ 190, (1991) 71 COMCAS 173
ORDER Varghese Kalliath, J.
1. This Civil Revision Petition concerns a question of correction of a judgment and decree. Two sets of defendants against whom a decree was passed in O.S. 34 of 1981 on the file of the Sub Court, Kottayam, filed applications for correcting the judgment and decree passed against them. The court below declined to correct the judgment and decree. Hence this Civil Revision Petition.
2. By filing O.S. 34 of 1981, the plaintiff, a Bank, prayed for recovery of a very large amount from the defendants. The suit claim was based on loans advanced by the Bank under various transactions. Defendant 1 in the suit was a firm. The firm was constituted by one Annamma and the 3rd defendant (the revision petitioners before me are the children of Annamma). The suit was instituted after the death of Annamma against the firm and the surviving partner of the firm, namely, the 3rd defendant, and the children of Annamma. After considering the evidence in the case and the contentions raised by the defendants the trial Court passed a decree in the following terms :
"In the result, the plaintiff is given a decree as against the defendants for realisation of Rs. 9,85,352.50 ps. with interest at the rate of 16% per annum from the respective due dates of each Bill as shown in Schedule C attached to the plaint up to 16-1-1981 and Rs. 946/-being the notary charges, and wilh future interest from 16-1-1981 at the rate of 16% per annum on Rs. 9,86,298.50 till date of realisation and with costs, from the defendants and charged on the plaint schedule mortgaged properties and by execution against defendants 2 and 4 to 9 only after exhausting all the remedies for realisation of the above said amount from defendants 1 and 3 and their assets and the mortgaged properties."
3. The revision petitioners submitted before me that the judgment is incorrect since the learned Judge has not taken note of the provision contained in S, 52 of the Civil P.C. They contend that their liability to the plaintiff is only to the extent of the property inherited by them from their mother and that the court ought to have given a decision limiting their liability to the extent of the property, if any, they have inherited from Annamma. This is the main ground highlighted for seeking correction of the judgment and decree of the court. They wanted the judgment and decree to be amended so as to make it clear that the revision petitioners are liable under the decree only to the extent of the property, if any, inherited by them from their mother.
4. Obviously, the decree is against the revision petitioners. Of course, in regard to the realisation of the decree amount, some conditions advantageous to the revision petitioners have been added insofar as the decree provides that the revision petitioners and their properties can be proceeded against only as a last resort.
5. Now, counsel for the revision petitioners submits before me that since the decree has been passed not taking into account the provisions contained in Section 52 of the Civil P.C. it has to be treated as a decree passed without jurisdiction and since the decree passed in the suit is without jurisdiction it can be corrected under Section 152 of the Civil P.C.
6. I cannot agree with the counsel for the revision petitioners that the decree in this case is a decree without jurisdiction. At the worst, the revision petitioners can only say that the judgment has been rendered without taking notice of a particular provision in the Civil P.C. This omission, if at all it is an omission, will not render the judgment and the consequent decree totally void or without jurisdiction. In this circumstance, I feel that the remedy open to the revision petitioners, if they are aggrieved by the judgment and decree, is to file a review or an appeal against the judgment and decree. I feel it difficult to hold that a wrong judgment can be corrected by resorting to the provisions contained in Section 152, C.P.C.
7. The counsel for the revision petitioners referred me to a decision reported in Jayavant Rao v. Narsing Sakharam, AIR 1923 Bom 414. The counsel submitted before me that the facts of that case are almost identical to the facts of the case at hand. I find it difficult to agree with him. 1 need not say that a precedent is binding as regards the principle enunciated in the precedent. A precedent may be persuasive only in regard to the principle laid down in that precedent: Peculiar features and facts determine the decision in a case and it is always risky to follow the ratio of a decision without understanding the peculiar facts and circumstances of the case to be followed.
8. In AIR 1923 Bom 414 a suit was instituted against one Narayana Rao who died pending the proceedings and his son was impleaded as legal representative. Initially, the suit was dismissed, but in appeal the suit was decreed. The decree was drafted making the legal representative of his son personally liable to the decree debt. This fact was noticed only when the plaintiff sought for the arrest of the legal representative in execution of the decree. At that point of time, the legal representative filed an application for review of the decree of the appellate court for the purpose of amending the decree and in that context he relied on Section 52 of the Civil P.C. The District Judge considered that application for review and held that there was no error that can be corrected by exercising the review jurisdiction of the court. When the review application was dismissed, it seems that an appeal was filed before the Bombay High Court. The Division Bench held :
"To pass a decree against the legal representative of the deceased defendant so as to make him personally liable is not, in my opinion, competent to a court to direct. When the attention of the court was drawn to the error, even, though it might be at a rather late stage of the proceedings, there was no reason why on that account the mistake should not be remedied."
The factual situations in the case reported and in the case at hand are dissimilar. In the case reported, the decision was rendered in a proceeding for review of a judgment and the legal representative was impleaded on the death of the original defendant. In the case at hand, the legal representatives of Annamma were made defendants in the suit though it is stated that they are the legal representatives of Annamma. A perusal of the plaint, which is available in the case records, would show that the plaintiff sought to make the revision petitioners liable for the amount claimed and for that purpose certain facts have been stated in the plaint. This has been noticed in the judgment and it is stated thus : "As collateral security for the above said credit facility as well as the other credit facilities sanctioned to the 1st defendant, defendants 3, 4 and 5 in advance deposited the title deeds relating to 24 cents of land in Kanjirapally village and created an equitable mortgage, for the sanctioned credit facilities up to a limit of Rs. 2,50,000/-". After considering the circumstances involved in the case at length, the court found that "therefore I find that all the defendants are liable to pay the amount, but in the nature of this case, the plaintiff can be allowed to realise the overdues firstly from defendants 1 and 3 and from the mortgaged properties and they can proceed against the other defendants only if the overdue amount is not realised from the 1st defendant, its assets, and from the 3rd defendant and from his assets and from the mortgaged properties". When the trial court has stated what I have quoted in the judgment, it makes me think that the trial court had consciously made the defendants liable for the decree amount personally also. The question whether what the trial court has done is correct or not is a question beyond the pale and scope of an investigation under Section 152 of the Civil P.C. It has to be noted that the application to correct the decree was filed before the same Judge and the learned Judge declined to correct the decree stating that under Section 152 it is not possible and the proper remedy is to get it corrected by filing a review or an appeal.
9. The rule in Section 152, C.P.C. embodies the English slip rule in Order 28, Rule 11 of the English Rules of the Supreme Court. It provides that "any clerical mistake in a decree, or any error arising from any accidental slip or omission, may at any time be corrected on motion or petition." Section 152 of the Civil P.C. proides that the "clerical or arithmetical mistakes in judgments, decrees or orders of 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 foundation of this rule is the maxim that an act of Court shall not prejudice a litigant and that the courts have a duty to see that their records are true and that they represent the correct state of affairs. This is one of the highest duties of the court and that may be the reason that the court is given the power to correct the records of its own motion even if the parties to the litigation have not moved the court for a correction. In this way, if the conditions laid down in Section 152, C.P.C., are satisfied, the court is obliged to order Correction and that the court cannot avoid it saying that it is a discretionary power that has been conferred on the court under Section 152, C.P.C. In the matter of correcting decrees, Cotton, L.J. said in In re Swire Melior v. Swire, (1885) 30 Ch D 239) thus :
".....it is only in special circumstances that the court will interfere with an order which has been passed and entered, except in cases of a mere slip or verbal inaccuracy, yet in my opinion the Court has jurisdiction over its own records, and if it finds that the order as passed and entered contains an adjudication upon that which the court in fact has never adjudicated upon, then, in my opinion, it has jurisdiction, which it will in a proper case exercise, to correct its record, that it may be in accordance with the order really pronounced."
Agreeing with Cotton L.J., Bowen, L.J. observed :
"I think the true view Is, as stated by the Lord Justice Cotton, that every Court has inherent power over its own records as long as those records are within its power, and that it can set right any mistake in them. It seems to me that it would be perfectly shocking if the Court could not rectify an error which is really the error of its own minister. An order, as it seems to me, even when passed and entered, may be amended by the Court so as to carry out the intention and express the meaning of the Court at the time when the order was made, provided the amendment be made without injustice or on terms which preclude injustice. The Lord Justice Lindley has pointed out that this power which we are now asserting is a power which was always possessed by the Courts of Chancery under the old system. On that point I say nothing. But I venture to add this, that it is a power which has been exercised for hundreds of years by the Common Law Courts, and it would indeed be strange if the power were found to have disappeared when Court of Appeal was created by the Judicature Act. Lord Penzance, speaking as a common law lawyer was well justified, as one would expect from a Judge of his great distinction, in saying that at common law it was always understood that the Court had the power to make these corrections. When there was any mistake which could be ascribed to the officers of the Court, judgments at common law could always be amended in the term, and in some cases after the term in which they were pronounced".
10. Order XX, Rule 3, C.P.C, mandates that a judgment once signed, cannot afterwards be altered or added to, save as otherwise provided by Section 152 or on review. Order 29, Rule 6, C.P.C., makes it clear and plain that a decree shall be drawn up so as to agree with the judgment. So, alteration, amendment or addition in the judgment and decree once signed by the Judge, is allowed only under Section 152, C.P.C. -- a clerical or arithmetical mistake or an error arising from an accidental slip or omission. It is also permissible invoking the inherent powers of the Court to correct a decree which is at variance with the judgment so as to make it in conformity with the judgment. Section 152 will not apply if it does not pertain to a clerical or arithmetical mistake or an error arising from an accidental slip or omission even in a case a judgment has been passed under an erroneous impression as to the facts. I feel that a convenient and general test that can be applied to determine whether the correction sought for is in the field of accidental slip or omission or not, is to examine whether the judgment as it stands represents the intention of the Judge at the time he made it, and if it does, then, a mistake in it cannot be treated as an accidental slip or omission.
11. It is difficult for me to say that the errors pointed out on the basis of Section 52, C.P.C., and sought to be corrected can be attributed to any accidental slip or omission in the judgment. So, Section 152, C.P.C. is not attracted to the facts of the case.
12. The counsel submits that since the liabilities have been fastened upon the revision petitioners by the judgment and decree ignoring clear provisions of Section 52, C.P.C., I should make it clear that t his order confirming the order of the trial Court should not stand in the way of the revision petitioners seeking appropriate remedy at the appropriate forum. I make it clear that if law allows any remedy, this order shall not stand in the way of the revision petitioners resorting to such a remedy.
13. In the result, I see no merit in this Civil Revision Petition and it is only to be dismissed I do so.