Andhra HC (Pre-Telangana)
Manchiraju Manikyamba vs Manchiraju Nageswararao And Ors. on 22 August, 1997
Equivalent citations: 1998(4)ALT400
Author: V. Bhaskara Rao
Bench: V. Bhaskara Rao
ORDER V. Bhaskara Rao, J.
1. This Civil Revision Petition is directed against the order in LA. No. 957/88 in A.S. No. 29/84 on the file of Subordinate Judge, Tadepalligudem, dt. 18-6-1996 refusing to amend the judgment and decree in A.S. No. 29/84, dt. 13-11-1986 under Sections 151,152 and 153 C.P.C. so as to enforce the first instalment of annual maintenance from 15-3-1977 as sought for in the plaint. The plaintiff in O.S. No. 247/76 and appellant in A.S. No. 29/84 is the revision petitioner herein.
2. The facts and circumstances giving rise to this revision petition are that she is the widow of late Visweswara Rao, brother of respondent Nos. 1 to 4. Husband of the revision petitioner died in March, 1938 and thereupon respondent Nos. 1 and 4 executed a registered maintenance deed dt. 18-3-1938 agreeing to pay Rs. 61/- towards annual maintenance until the date of her husband's death and later at the rate of Rs. 94/- per year creating a charge on item Nos. 2 and 3 and undivided share in item No. 1 of the plaint schedule. She has been receiving the above maintenance under protest and she has been demanding for enhancement of maintenance from joint family property and realising sufficient income. As the needs of the revision petitioner increased on account of the rise in prices of commodities and for various considerations, she sought for enhancement of maintenance at Rs. 1,800/- per year with effect from 15-3-1977 and in default of the payment of the same by due date, an interest of 5 1/2% per annum till the date of realisation is also sought for with a charge over the plaint schedule properties. The suit was resisted by the respondents. The trial Court dismissed the suit and hence she preferred A.S. No. 29/84 to the Court of Subordinate Judge, Tadepalligudem. On an assessment of the evidence on record, the learned Subordinate Judge allowed the appeal and decreed the suit enhancing the maintenance to Rs. 1,800/- per year against D-1 to D-7 and D-17 and directed that the same be paid in two equal instalments, first on 15th March every year and the second on 15th September every year. A charge was created for the enhanced maintenance on the properties in respect of which registered maintenance deed was executed. As the date of commencement of the first instalment is not specifically mentioned in the result portion of the judgment and decree, the present petition for amendment of the judgment and decree is filed. It is asserted that an omission of the said date is only an accidental slip or error and the same is fit to be corrected.
3. Respondent No. 1 filed a counter resisting the petition. It is stated that an appeal has been filed in the High Court against the above judgment and decree and hence this Court has become functus officio and that it is open for the petitioner to move the High Court for necessary clarification. It is also stated there are no bona fides in the petition.
4. The learned Subordinate Judge considered the above contentions and perused the judgment and decree in A.S. No. 29/84 and held that the petitioner is not merely seeking a correction of date or some words omitted accidentally, but she is seeking an addition of some portion in the operative portion of the judgment as though she is seeking amendment of pleadings and that the same is not permissible under Sections 151 and 152 C.P.C. It is further stated that the amendment sought for would tantamount to reviewing the judgment and that this petition should have been filed when the Presiding Officer who rendered the judgment in A.S. No. 29/84 was holding the office and that he would have been in a better position to decide the commencement of maintenance. Thus, the petition has been dismissed by the learned Subordinate Judge. Aggrieved by the order, the present Revision Petition is filed.
5. The short point that arises for consideration is whether omission in the mentioning the date of commencement of the first instalment in the result portion of the judgment and decree is an accidental error or clerical mistake and liable to be corrected Under Section 152 or 153 C.P.C.
6. Sri P. Chidambaram, learned Counsel for the revision petitioner has taken me through the relevant portion of the judgment and contended that in para No. 29 thereof there is a discussion about the basis for enhancement of maintenance namely, that in these days of 1976 or later days Rs. 150/- is not at all exhorbitant claim and that it is an indication that the learned Judge intended to award enhancement from 15th March, 1977 as sought for. He has also taken me through the entire judgment and strenuously argued that there is no other intention like refusing to award maintenance from that date and hence it appears to be a pure omission or clerical error which is fit to be corrected Under Section 152 C.P.C. On the other hand, Sri P. Srirama Murthy, learned Counsel for the respondents contended that it is not a clerical error inasmuch as the relief in the plaint is for enhancement from 15th March, 1977 and the same is not granted and it tantamounts to refusal of the same. Drawing a parlance from the ratio held in M. Nagendrudu v. V. Gundarayudu 1970 APLJ 1 he argued that a relief which is not granted is deemed to have been refused and in such a case the amendment cannot be allowed. He also placed reliance upon Thirugnanavalli Ammal v. Venugopala Pillai AIR 1940 Madras 29, Nagaratnamma v. Seethramamma and Gulab Bai v. Ram Pratap .
7. I perused the judgment in A.S. No. 29/84 which is sought to be amended. For proper appreciation of the contentions of Sri Chidambaram, it is useful to extract Para No. 29 thereof:
"29. This leads to consider whether the plaintiff is entitled for enhancement of maintenances. In these days of 1976 or later days Rs. 150/- was not at all exhorbitant for a just living a woman, taking into consideration the provision of her residence and also the necessity for expenses including costs of cloth and all other food articles. Therefore, I find that Rs. 1,800/- annual claim is reasonable and it can be fixed per year maintenance payable by 15th March every year or twice in equal halfs, the first half payable by 15th March and second half payable by 15th September of every year."
In the preceding paragraphs, the learned Judge considered the evidence and he has come to a conclusion that the revision petitioner is entitled for enhancement of maintenance. He then adverted to quantum of enhancement and in doing so he has taken into consideration the rates of commodities prevailing in 1976 and later days. It is note worthy that the revision petitioner has sought for enhancement with effect from 15-3-1977 and evidently her claim is based upon the spiralling prices prevailing in 1976 and the cause of action for her arose. The learned Judge has therefore held that Rs. 1,800/- per year would be a reasonable enhancement and that the same is ordered to be paid in two equal instalments i.e., on 15th March and 15th September every year. If the sentence 'In these days of 1976 or later days Rs. 150/- was not at all exhorbitant for a just living a woman. . . ' is read with the later part of the judgment, it appears that the intention is to award enhancement with effect from 15th March 1977 as sought for. In that view of the matter, it appears to be an accidental slip or error. This aspect is to be kept in view while deciding the Civil Revision Petition.
8. I shall now take up the case law relied upon by both sides. I shall first advert to the judgments relied on by Sri P. Srirama Murthy. In supra (1) it is held, 'The words "the Court may order payment of interest to the mortgagee" occurring in Rule 11 of Order 34 C.P.C. leave no room to doubt that the award of subsequent interest is a matter which is purely within the discretion of the Court. The discretion has no doubt got to be exercised judicially and it is also true that Courts ordinarily award subsequent interest though not at the rate stipulated in the mortgage. But it is certainly not obligatory on the Court to make a direction for payment of subsequent interest in each and every case.
Subsequent interest could be claimed if only there is a direction to that effect by the Court and not otherwise as it does not follow as a matter of course and cannot be claimed as of right.
If there is a direction at least in the preliminary and final judgments, for payment of interest till the date of realisation from the date fixed for redemption, it might be possible to hold that there is an accidental omission in the decrees in this regard as decrees have to be drawn up in conformity with the judgment. The plaintiff cannot therefore invoke to his aid Section 152 C.P.C. which applies only to cases of clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission.
The absence of any direction for payment of subsequent interest would therefore amount to refusal to award any subsequent interest."
Accordingly, the Division Bench held that omission to grant subsequent interest would amount to refusal to award subsequent interest and in such a situation Section 152 C.P.C. cannot be taken aid of. In the judgments cited supra (2) and (4) a similar question has arisen for consideration and since Section 34(2) C.P.C. specifically provides that omission to award future interest would amount to refusal it has been held that an amendment Under Section 152 C.P.C. is not maintainable. Likewise, in the judgment cited supra (3), interest which could have been allowed Under Section 55(4) of the Transfer of Property Act has not been awarded and it is held that it amounts to refusal vis-a-vis the case law cited above.
9. It is noteworthy that in all the cases cited supra (1 to 4) claims for future interest came up for consideration and having regard to the specific provision viz., Section 34(2) C.P.C. it has been held that omission to award future interest would amount to refusal. It would be beneficial to extract Section 34(2) C.P.C. for proper appreciation of the above ratio:
Section 34(2) C.P.C:
"Where such a decree is silent with respect to the payment of further interest on such principal sum from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefor shall not lie".
Insofar as claim for future interest is concerned, it is obligatory on the part of the trial Court to consider the claim for future interest and to pass an affirmative order or direction if that Court considered it fit to allow future interest. If there is no specific order in positive terms or if there is an omission in that regard, Section 34(2) C.P.C. comes into operation and the result would follow that the claim for future interest has been rejected.
10. Turning to the facts of the case on hand it has been rightly argued by Sri Chidambaram that it is not a claim for future interest so as to attract Section 34 (2) C.P.C. Though at the cost of repetition it may be stated that the claim is for enhancement of maintenance with effect from 15-3-1977 and I have already indicated above that the learned trial Judge considered the above claim in para 29 of the Judgment.
11. Sri Chidambaram places reliance upon a Judgment of Supreme Court in B. Shivananda v. Andhra Bank Ltd. and Anr. . In that case a preliminary decree for sale of properties covered by two simple mortgages besides a personal decree against the defendant with future interest and costs was sought for and the suit was decreed ex parte. Thereafter, two applications were filed, one by the decreeholder seeking future interest at the rate of 16 1/2 % on the decretal amount and another by the judgment-debtor. The trial Court allowed the application of the judgment-debtor and dismissed the application of the decreeholder. The High Court set aside the above orders in Revision and thus, the matter was carried to the Supreme Court by Special Leave. It is held, "We need not go, in depth, into the controversy, raised in the case but suffice to state that Bank sought a relief in the plaint for payment of an amount specified and interest on the principal amount of Rs. 5,25,000/- with interest accrued thereon till the date of suit, the amount came to Rs. 6,89,917.79 ps. Section 152 C.P.C. clearly gives power to the Court to amend clerical or arithmatical mistakes in the judgment and decree or order or any errors arising therein from any accidental slip or omission. The same may, at any time, be corrected by the Court either of its own motion or on the application of any of the parties to the suit. Therefore, it is not necessary that the aggrieved party should necessarily file an appeal or review for effecting correction of the judgment or decree or order. But in this case, as seen, that the claim for future interest at 16 1/2% was made in the suit itself which admittedly, is the contracted rate of interest. Therefore, the Bank is entitled to claim interest in terms of the contract at 16 1/2% from the date of lending till the date of filing of the suit. However, the Court has discretion Under Section 34 CPC to award interest. Admittedly, the loan was taken for construction of theatre. In other words the loan was for a commercial transaction. In the facts and circumstances of this case, we consider it just and proper that the appellant should pay simple interest at the rate of 16 1/2% per annum on the principal amount claimed in this suit from the date of the decree till the date of realisation".
12. Although the Supreme Court has not considered the effect of Section 34(2) C.P.C. in the case of omission to award future interest and whether it amounts to refusal, the fact remains that the interest claimed by the decreeholder was future interest at 16 1/2% and the same was allowed exercising the discretion Under Section 34 C.P.C. Be that as it may.
13. The principle underlying Section 34(2) C.P.C. wherein by legal fiction an omission of para in decree not awarding future interest is treated as refusal, but the same cannot be applied in a case of this type. What is required is the intention of the learned Judge who rendered the Judgment and it has to be gathered by reading of the entire Judgment. I have dispassionately read the judgment and I agree with Sri Chidambaram that the above intention is manifest by the portion extracted above and thus it can be held that the learned Judge intended to award enhanced maintenance with effect from 15-3-1977. The point is answered accordingly.
14. It is no doubt true that the proposed amendment is not in respect of a date but the revision petitioner is seeking deletion of entire clause of the decree and substitution of some words by importing the same from her prayer in the plaint. I do not think that such a wholesale deletion or substitution can be brought in within the scope of Section 152 C.P.C. Although Section 152 C.P.C. empowers the Court to correct the clerical or arithmatical mistakes in Judgment and decree it should not extend to deletion and substitution of paras as sought for. Having considered the matter at length, I am satisfied that the intention of the learned Judge can be amplified by adding 'with effect from 15th March, 1977 and 15th September, 1977' in the result portion (para No. 31). It follows that the decree also will have to be corrected to fall in line.
15. In the result, the Civil Revision Petition is allowed and the impugned order is set aside and consequently I.A. No. 957/1988 on the file of Subordinate Judge, Tadepalligudem stands allowed to the extent indicated above. There will be no order as to costs.
16. It is needless to add that the decree in A.S. No. 29/1984 stands undisturbed in all other respects.