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2025 DAILYLAW 3539 (HP)

Durga v. Sanjeev Kumar

2025-09-22

Ajay Mohan Goel

body2025
JUDGMENT : Ajay Mohan Goel, Judge By way of this petition, the petitioners have, inter alia, prayed for the following relief:- It is, therefore, prayed this petition may kindly be allowed and the impugned order dated 30. 10 2015, passed by the learned Civil Judge (Sr. Div.) Court No.1, Ghumarwin, District Bilaspur, in CMA No 181-6/2009, may kindly be set aside and application under section 152 of the Code of Civil Procedure may kindly be allowed with costs throughout in the interest of justice and fair play.” 2. Brief facts necessary for the adjudication of this petition are that a Civil Suit for declaration and permanent prohibitory injunction was filed, i.e. Civil Suit No.10-1 of 1995/87, titled Sanjeev Kumar and another Versus Durga and others by Sanjeev Kumar and Anil Kumar. In this Civil Suit, the defendants besides filing written statement have also filed a Counter Claim. The Civil Suit was disposed of vide judgment and decree dated 27.03.1995 (Annexure P-2). Para-17 of the said judgment reads as under:- “17. In view of my findings on the aforesaid issues, the suit of the plaintiffs fails and the same is hereby dismissed with costs. Decree Sheet be prepared accordingly. The file after completion be consigned to record room.” 3. The decree passed by the learned Trial Court in the said suit reads as under:- “Plaint presented on the 22th September, 1907. This suit coming on this day for final disposal before M.K. Bansal Sub Judge 1st Class Chumarwin District Bilaspur H.P. In the presence of Sh. B.S. Thakur Adv, counsel for the plaintiffs and Sh. B.S. Chandel Adv. counsel for defendant No. 1 & 2, and Sh. R.L. Bhardwaj Adv. counsel for the defendant No. 3 & 4. It is ordered that the suit of the plaintiffs fails and the same is hereby dismissed with costs. It is further ordered that the plaintiffs shall also pay Rs.230-50 to the defendants No. 1 & 2. Costs of suit.” 4. In this decided case, in the month of May, 2009, an application was filed under Section 152 of the Civil Procedure Code by the petitioners herein to correct the error in the decree. Copy of the application is on record as Annexure P-5. 5. It was mentioned in the application that the non- applicants/plaintiffs had filed the Civil Suit, which was dismissed on 27.03.1995. The applicants had filed written statement alongwith Counter Claim. Copy of the application is on record as Annexure P-5. 5. It was mentioned in the application that the non- applicants/plaintiffs had filed the Civil Suit, which was dismissed on 27.03.1995. The applicants had filed written statement alongwith Counter Claim. Learned Court below framed the Issues in the Counter Claim. These issues were decided in favour of the applicants. Inadvertently and due to the mistake of the Court, in the judgment and decree passed, it ‘slipped to decree the Counter Claim in the decree sheet”. It was further mentioned in the application that the said omission in the decree dated 27.03.1995 would cause difficulty and hardships to the applicants and therefore, the omission deserves to be corrected. 6. The application was opposed in terms of the reply, in which it was inter alia mentioned that the application filed under Section 152 of the Civil Procedure Code was not maintainable. It was further mentioned in the reply that an appeal was filed against the judgment and decree of the learned Sub-Judge, 1st Class Ghumarwin before the learned Appellate Court and this judgment merged in the judgment and decree passed by the learned Appellate Court. The application was also opposed by the non-applicants/plaintiffs on the ground of maintainability and also on the account of subsequent events which were narrated in the reply. 7. The application was dismissed by the learned Trial Court vide impugned order dated 30.10.2025 (Annexure P-7). Learned Trial Court returned the following findings while dismissing the application:- “4. I have heard the learned counsel for the parties and gone through the case file carefully. 5. Section 152 C.P.C. reads thus:- “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 any of the parties." 6. In the present case, there is neither any clerical nor any arithmetical mistake in the judgment or decree or orders or error arising therein from. The applicants intend to get prepare a decree sheet of judgment passed on 27.03.1999 passed in civil suit. Since, Section 152 C.P.C. speaks to correct the clerical or arithmetical mistakes in judgments, decrees and orders, hence, the present application for preparation of decree sheet is not maintainable. Accordingly, the present application is dismissed. No order as to costs. The applicants intend to get prepare a decree sheet of judgment passed on 27.03.1999 passed in civil suit. Since, Section 152 C.P.C. speaks to correct the clerical or arithmetical mistakes in judgments, decrees and orders, hence, the present application for preparation of decree sheet is not maintainable. Accordingly, the present application is dismissed. No order as to costs. Application stands disposed of, it be tagged with the main case file and main case file after doing needful be consigned to the record room.” 8. Learned Senior Counsel appearing for the petitioners argued that the impugned order is not sustainable in the eyes of law, for the reason that the learned Court below erred in not appreciating that as the body of the judgment passed by the learned Trial Court clearly demonstrated that the Counter-Claim filed by the defendants was allowed by the learned Trial Court, then indeed there was a clerical mistake in the order which ought to have been rectified under Section 152 of the Civil Procedure Code. Learned Senior Counsel further submitted that the findings returned by the learned Trial Court that there was neither any clerical nor any arithmetical mistake were erroneous findings because the mistake was ex facie evident, which was a clerical one as despite the Counter-Claim of the defendants having been allowed by the learned Trial Court, it omitted to reflect the same in the relief para as well as the decree sheet prepared by it and accordingly, he submitted that this petition be allowed by setting aside the impugned order. In support of his contentions, learned Senior Counsel relied upon the following judgments:- 1. Lakshmi Ram Bhuyan Versus Hari Prasad Bhuyan and Others, (2003) 1 Supreme Court Cases 197. 2. Srihari (dead) Through Legal Representatives Ch. Niveditha Reddy Versus Syed Maqdoom Shah and Others, (2015) 1 Supreme Court Cases 607. 9. On the other hand, learned Senior Counsel appearing for the respondents argued that there was no infirmity in the impugned order, as indeed there was neither any clerical nor arithmetical mistake in the judgment passed by the learned Trial Court. Learned Senior Counsel submitted that the relief clause of the judgment passed by the learned Trial Court was self demonstrative that the suit of the plaintiffs was dismissed. Learned Senior Counsel submitted that the relief clause of the judgment passed by the learned Trial Court was self demonstrative that the suit of the plaintiffs was dismissed. In terms of the relief clause, the Counter-Claim was not allowed, nor any direction was passed by the learned Trial Court for preparation of the decree, to the effect that the Counter-Claim of the defendants stood allowed. He submitted that if indeed the defendants were aggrieved by the said judgment passed by the learned Trial Court, then they ought to have had assailed it by way of an appeal or they could have had sought a review of the judgment. Learned Senior Counsel further submitted that otherwise also, the judgment and decree were passed in the year 1995, whereas the application under Section 152 of the Civil Procedure Code was filed in the year 2009. In the application filed under Section 152 of the Civil Procedure Code not even a single line was mentioned as to why the application was being filed after fourteen years. Learned Senior Counsel submitted that in the interregnum, lot of developments had taken place and third party interest stood created in the property in issue and in this backdrop the belated application filed by the petitioners, which was otherwise not maintainable was rightly rejected by the learned Trial Court. 10. I have heard learned Senior Counsel for the parties and have also carefully gone through the impugned order as well as the documents appended with the petition. 11. Before proceeding further, it is relevant to take note of a few facts. Record demonstrates that the suit was filed by the plaintiffs in the year 1987. It was decided on 27.03.1995. The judgment and decree passed in the suit was assailed by the plaintiffs before the learned District Judge, which in terms of judgment dated 03.05.2003, accepted the appeal and remanded the suit back. This remand order was assailed before this Court in terms of FAO No.243 of 2003. The order passed in the said FAO is appended with this petition as Annexure P-3. The FAO was disposed of by this Court vide order dated 05.12.2008, in terms whereof, the appeal filed against the judgment passed by the learned District Judge, Bilaspur, H.P. was allowed. The order passed in the said FAO is appended with this petition as Annexure P-3. The FAO was disposed of by this Court vide order dated 05.12.2008, in terms whereof, the appeal filed against the judgment passed by the learned District Judge, Bilaspur, H.P. was allowed. The judgment passed by the learned District Judge was set aside and the case was remanded back to the learned District Judge to decide the same afresh. Record further demonstrates that after the remand of the case to the learned District Judge, on 26.02.2009, a request was made before the learned District Judge by the appellants therein, i.e. the plaintiffs that they intended to withdraw the appeal as well as the Civil Suit. On 26.02.2009, the following order was passed by the learned Appellate Court:- “The learned counsel for the appellant has made a statement which is duly reduced into writing and signed by him, whose perusal divulges that the appeal as well as civil suit is sought to be withdrawn. Permission as prayed for is granted. Accordingly, the present appeal as well as civil suit is dismissed as withdrawn. Copy of this order alongwith record of the learned Trial Court be returned to the learned Trial Court and the file of this Court be consigned to the record room after due completion.” 12. It is thereafter, that the application was filed under Section 152 of the Civil Procedure Code. Section 152 of the Civil Procedure Code provides that 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. Thus, what can be corrected under Section 152 of the Civil Procedure Code are clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. 13. This Court has already quoted hereinabove Para-17 of the judgment passed by the learned Trial Court, in terms whereof, the suit of the plaintiffs was dismissed and it was ordered that decree sheet be prepared accordingly. 13. This Court has already quoted hereinabove Para-17 of the judgment passed by the learned Trial Court, in terms whereof, the suit of the plaintiffs was dismissed and it was ordered that decree sheet be prepared accordingly. Though, it is a matter of record that in Para-15 of the judgment, learned Trial Court observed that the defendants fully deserved the right of declaration prayed for by way of Counter-Claim, but fact of the matter remains that neither any relief to this effect was granted in the relief clause by the learned Trial Court, nor it was ordered that decree sheet be prepared accordingly. 14. This Court is of the considered view that the act of the learned Trial Court of not granting the relief of the decreeing of the Counter-Claim could not be termed to be either a clerical or an arithmetical mistake or an omission which could have been corrected under Section 152 of the Civil Procedure Code. The judgment which was delivered in the year 1995 was with the defendants and they could have easily either sought a review thereof or could have filed an appeal, because it was a matter of record that their Counter-Claim was not decreed by the learned Trial Court. In the appeal or in review the defendants could have had referred to the contents of the judgment to bring home their point. 15. This not having been done, the petitioners had no right to thereafter, after fourteen years, make a prayer to the effect that an order be passed that the Counter-Claim be decreed by filing an application under Section 152 of the Civil Procedure Code. 16. At this stage, I will refer to the judgments cited by the learned Senior Counsel for the petitioners. In Lakshmi Ram Bhuyan Versus Hari Prasad Bhuyan and Others, (2003) 1 Supreme Court Cases 197, Hon’ble Supreme Court was dealing with a matter wherein a Civil Suit was dismissed by the learned Trial Court, which dismissal was upheld by the learned 1st Appellate Court. In the Second Appeal, the High Court allowed the appeal and ordered as under:- “In the circumstances stated above, I respectfully understand that the Hon'ble High Court desired that the decree should be prepared by this court granting all the reliefs claimed by the plaintiffs/appellants. In the Second Appeal, the High Court allowed the appeal and ordered as under:- “In the circumstances stated above, I respectfully understand that the Hon'ble High Court desired that the decree should be prepared by this court granting all the reliefs claimed by the plaintiffs/appellants. The earlier decree prepared by this Court was only in respect of the cost granted by the Hon'ble High Court, the decree should have contained all the reliefs claimed in the plaint. Therefore, for ends of justice, it is necessary to amend and correct the said decree. Accordingly the Sheristadar is directed to prepare the decree as per direction of the Hon'ble High Court and put up the same before the undersigned on 10.09.1997. After preparing the decree, the learned counsels for the parties be informed about the corrected decree." Thereafter, the decree that was prepared by the learned Trial Court only referred to the costs and it did not mention the other reliefs prayed for. In the course of execution learned Civil Judge held that as no formal decree regarding delivery of Khas possession etc. was drawn up, the execution was liable to be stayed till preparation of proper decree in the suit. The record of the suit was directed to be put up for preparation of necessary decree. On the same date, by a separate order passed in the suit learned Civil Court set out briefly the operative part of the judgment of the Trial Court in the original suit and that of the High Court in the Second Appeal and ordered that a decree be prepared as per the direction of the High Court which should contain all reliefs claimed in the plaint. In Revision, said Order was upheld by the High Court and when the matter landed before the Hon’ble Supreme Court in the backdrop mentioned hereinabove, the Hon’ble Supreme Court in the said case held as under:- “11. The obligation is cast not only on the Trial Court but also on the Appellate Court. In the event of the suit having been decreed by the Trial Court if the Appellate Court interferes with the judgment of the Trial Court, the judgment of the Appellate Court should precisely and specifically set out the reliefs granted and the modifications, if any, made in the original decree explicitly and with particularity and precision. In the event of the suit having been decreed by the Trial Court if the Appellate Court interferes with the judgment of the Trial Court, the judgment of the Appellate Court should precisely and specifically set out the reliefs granted and the modifications, if any, made in the original decree explicitly and with particularity and precision. Order XLI Rule 31 of the CPC casts an obligation on the author of the appellate judgment to state the points for determination, the decision thereon, the reasons for the decision and when the decree appealed from is reversed or varied, the relief to which the appellant is entitled. If the suit was dismissed by the Trial Court and in appeal the decree of dismissal is reversed, the operative part of the judgment should be so precise and clear as it would have been if the suit was decreed by the Trial Court to enable a self- contained decree being drawn up in conformity therewith. The plaintiff, being dominus litus, enjoys a free hand in couching the relief clause in the manner he pleases and cases are not wanting where the plaintiff makes full use of the liberty given to him. It is for the Court, decreeing the suit, to examine the reliefs and then construct the operative part of the judgment in such manner as to bring the reliefs granted in conformity with the findings arrived at on different issues and also the admitted facts. The Trial Court merely observing in the operative part of the judgment that the"In the circumstances stated above, I respectfully understand that the Hon'ble High Court desired that the decree should be prepared by this court granting all the reliefs claimed by the plaintiffs/appellants. The earlier decree prepared by this Court was only in respect of the cost granted by the Hon'ble High Court, the decree should have contained all the reliefs claimed in the plaint. Therefore, for ends of justice, it is necessary to amend and correct the said decree. Accordingly the Sheristadar is directed to prepare the decree as per direction of the Hon'ble High Court and put up the same before the undersigned on 10.09.1997. Therefore, for ends of justice, it is necessary to amend and correct the said decree. Accordingly the Sheristadar is directed to prepare the decree as per direction of the Hon'ble High Court and put up the same before the undersigned on 10.09.1997. After preparing the decree, the learned counsels for the parties be informed about the corrected decree." suit is decreed or an appellate Court disposing of an appeal against dismissal of suit observing the appeal is allowed, and then staying short at that, without specifying the reliefs to which the successful party has been found entitled tantamounts to a failure on the part of the author of judgment to discharge obligation cast on the Judge by the provisions of Code of Civil Procedure. 12. In the case at hand, a perusal of the reliefs prayed for in the plaint shows that the reliefs are not very happily worded. There are some reliefs which may not be necessary or may be uncalled for though prayed. The reliefs may have been considered capable of being recast or redefined so as to be precise and specific. May be that the Court was inclined to grant some other relief so as to effectually adjudicate upon the controversy and bring it to an end. Nothing is spelled out from the appellate judgment. The Trial Court, on whom the obligation was cast by second appellate judgment to draw up a decree, was also, as its order shows, not very clear in its mind and thought it safe to proceed on an assumption that all the reliefs sought for in the plaint were allowed to the plaintiffs. The learned single Judge allowing the second appeal, should have clearly and precisely stated the extent and manner of reliefs to which the plaintiffs were found to be entitled in his view of the findings arrived at during the course of the appellate judgment. The parties, the draftsman of decree and the executing Court cannot be left guessing what was transpiring in the mind of the Judge decreeing the suit or allowing the appeal without further placing on record the reliefs to which the plaintiffs are held entitled in the opinion of the Judge. 13. There is yet another infirmity. Ordinarily the decree should have been drawn up by the High Court itself. 13. There is yet another infirmity. Ordinarily the decree should have been drawn up by the High Court itself. It has not been brought to the notice of this Court by the learned counsel for either parties if there are any rules framed by the High Court which countenance such a practice as directing the Trial Court to draw up a decree in conformity with the judgment of the High Court. 14. How to solve this riddle? In our opinion, the successful party has no other option but to have recourse of Section 152 of CPC which provides for clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission being corrected at any time by the Court either on its own motion or on the application of any of the parties. A reading of the judgment of the High Court shows that in its opinion the plaintiffs were found entitled to succeed in the suit. There is an accidental slip or omission in manifesting the intention of the Court by couching the reliefs to which the plaintiffs were entitled in the event of their succeeding in the suit. Section 152 enables the Court to vary its judgment so as to give effect to its meaning and intention. Power of the Court to amend its orders so as to carry out the intention and express the meaning of the Court at the time when the order was made was upheld by Bowen L.J. in re Swire; Mellor V. Swire, (1885) 30 Ch.D. 239, subject to the only limitation that the amendment can be made without injustice or on terms which preclude injustice. Lindley L.J. observed that if the order of the Court, though drawn up, did not express the order as intended to be made then "there is no such magic in passing and entering an order as to deprive the Court of jurisdiction to make its own records true, and if an order as passed and entered does not express the real order of the Court, it would, as it appears to me, be shocking to say that the party aggrieved cannot come here to have the record set right, but must go to House of Lords by way of appeal." 15. For the foregoing reasons the appeal is allowed. For the foregoing reasons the appeal is allowed. The order of the Trial Court drawing up the decree is set aside. The parties are allowed liberty of moving the High Court under Section 152 CPC seeking appropriate rectification in the judgment of the High Court so as to clearly specify the extent and manner of reliefs to which in the opinion of the High Court the successful party was found entitled consistently with the intention expressed in the judgment. The delay which would be occasioned has to be regretted but is unavoidable. Once the operative part of the judgment is rectified there would be no difficulty in drawing up a decree by the High Court itself in conformity with the operative part of the judgment. If the rules of the High Court so require, the ministerial act of drawing up of the decree may be left to be performed by the Trial Court.” 17. In Srihari (dead) Through Legal Representatives Ch. Niveditha Reddy Versus Syed Maqdoom Shah and Others, (2015) 1 Supreme Court Cases 607, the Hon’ble Supreme Court held that the language of Section 152 of the Civil Procedure Code is meant for correcting the clerical or arithmetical mistakes in the judgments, decrees or orders or errors arising therein from any accidental slip or omission. It is true that the powers under Section 152 of the Code are neither to be equated with the power of review nor can be said to be akin to review or even said to clothe the Court under guise of invoking after the result of the judgment earlier rendered. The corrections contemplated under the section are of correcting only accidental omissions or mistakes and not all omissions and mistakes. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152. 18. This Court is of the considered view that the judgments cited by the learned Senior Counsel for the petitioners do not come to the rescue of the petitioners in the present case. Herein, it is not the case of the petitioners that despite the fact that the learned Trial Court allowed their Counter-Claim, the same was erroneously not reflected in the decree prepared. Herein, it is not the case of the petitioners that despite the fact that the learned Trial Court allowed their Counter-Claim, the same was erroneously not reflected in the decree prepared. Fact of the matter is that no judgment was passed by the learned Trial Court, granting relief to the petitioners to the effect that the Counter-Claim of the petitioners was decreed. Similarly, the alleged omission in the present case, if any, committed by the learned Trial Court is beyond the scope of Section 152 of the Civil Procedure Code and the petitioners would have been well advised to have approached either the learned Appellate Court or the learned Trial Court by way of an appeal within a reasonable time. As was also argued by the learned Senior Counsel for the respondents in the application filed under Section 152 of the Civil Procedure Code, there is not even a whisper as to why the application was being filed after fourteen years. In this backdrop, the rejection of the application filed under Section 152 of the Civil Procedure Code by the learned Trial Court cannot be faulted with. 19. Accordingly, in light of the observations made hereinabove, as this Court does not find any infirmity in the order impugned and any merit in the present petition, the same is dismissed. Pending miscellaneous application(s), if any also stand disposed of accordingly.