Andhra HC (Pre-Telangana)
State Bank Of Hyderabad vs B. Rangaswamy (Died) Per Lrs. And Ors. on 25 August, 2003
Equivalent citations: 2004(1)ALD645, III(2004)BC125, AIR 2004 ANDHRA PRADESH 91, (2004) 3 BANKCAS 125 (2004) 1 ANDHWR 523, (2004) 1 ANDHWR 523
ORDER B. Prakash Rao, J.
1. The petitioner is the plaintiff, who by way of this revision under Section 115 C.P.C. seeks to assail the orders passed in LA. No. 525 of 1998 in O.S.No. 13 of 1985 on the file of the Senior Civil Judge, Wanaparthy dismissing the application filed under Section 152 C.P.C. seeking amendment of the decree.
2. The facts, in brief, are that the petitioner had filed the above suit for recovery of money for a sum of Rs. 27,585.50 paisa with future interest at 18% p.a. on the foot of a promissory note. The suit was ultimately decreed as per the judgment and decree dated 5.3.1987 and the Court had granted time for payment of decreetal amount on or before 31.7.1987. However, though the suit was a simple suit for recovery of money, the office drafted the decree as a preliminary decree in a mortgage suit and therefore the decree is to be corrected in exercise of the powers under Section 152 C.P.C. Hence the petition.
3. Contesting the application, the case of the respondents was that the present application is filed long after the decree i.e., almost after lapse of 11 years and therefore the very application suffers from serious laches and delay. The petitioner had also obtained a certified copy of the decree and yet he neglected to file proper application immediately thereafter. Hence, the application requires to be rejected.
4. Considering the submissions of both the parties, the Court below dismissed the application mainly on the ground that the application suffers from serious laches on the part of the petitioner since the application is filed on 13.11.1998 i.e., more than 11 years and 4 months after passing of the decree and that too when the decree is getting time barred for the purpose of execution. The learned Counsel for the petitioner submits that the mistake occurred in drafting the decree cannot be attributable to the parties. Further, the suit having been filed simply for recovery of money, no decree as such could not have been drafted as a preliminary decree in a mortgage suit and therefore such mistakes can be corrected in exercise of powers under Section 152 C.P.C. Repelling the said contentions, it is contended on behalf of the respondents that having taken into consideration the delay and the laches on the part of the petitioner, the Court below has rightly rejected the application and therefore the petitioner is not entitled to any indulgence.
5. Considering the submissions made on either side and also on a perusal of the record, it transpires that admittedly, the suit is filed for recovery of money on the foot of a promissory note and the same was ultimately decreed after regular contest as per the judgment and decree dated 5.3.1987. Subsequently, the petitioner had obtained a certified copy and it is only at the time of seeking execution, the mistake was realized and therefore the present application is filed under Section 152 C.P.C. to amend the decree as that a simple money decree. There is no dispute as to the fact that there is any contribution of whatsoever nature on the part of the parties much less the petitioner in drafting the decree as that a mortgage decree. No doubt, the decree was passed on 5.3.1987 and the office drafted the same as a preliminary decree in a mortgage suit. Therefore, apparently the mistake is attributable to the office of the Court rather than to any of the parties. In fact, the Court below categorically gives a finding that by mistake the decree was prepared as a preliminary decree in a mortgage suit instead of a decree in simple suit for recovery of money. Even in the counter-affidavit filed by the respondents herein, no specific attribution is made against the petitioner to cast any responsibility as such nor are there any such reasons given by the Court below while dismissing the application. Section 152 C.P.C. reads as under:
"152. 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."
6. A bare reading of the aforesaid provision, it is clear that the Court has got ample powers to correct the clerical or arithmetical mistakes in judgments, decrees or orders or errors arising from any accidental slip or omission at any time. There is no dispute as to the fact that there is no prescribed period of limitation for filing an application under Section 152 C.P.C. Further, it is well established that the Court has got ample powers, inherent or otherwise as prescribed under the aforesaid provision to correct any such error which resulted due to any accidental slip or omission. It is not necessary to go into the total interpretation of the expression 'accidental slip or omission' as contemplated under the aforesaid provision. The expression 'accidental' means, any happening by chance or unexpectedly taking place not according to the usual course of things, unintentional, something unforeseen and unexpected and casual. Further an effect is said to be accidental when the act by which it is caused is not done with intention or causing it and when its occurrence as a consequence of such act is not so probable that a person of ordinary prudence ought, under the circumstances in which it is done, to take reasonable precautions against it. Therefore, the expression 'accidental' cannot be equated to the expression "negligence" or "wilful negligence' on the part of a party. In the circumstances, it is to be seen that the mistake, which occurred in this case is purely that of the office and the petitioner cannot be denied any such relief. Merely because of delay and laches, as long as there is no prescribed period of limitation to file an application under Section 152 C.P.C., it cannot be said that the application can be dismissed by attributing delay and laches. In the circumstances, it has to be held that the application as has been filed is to be allowed. Accordingly, IA No. 525 of 1998 in OS No. 13 of 1985 on the file of the Senior Civil Judge, Wanaparthy is allowed. The Court below is directed to draft a fresh decree in the above suit as if it is a decree in a simple suit for recovery of money. Accordingly, the revision petition is allowed. No order as to costs.