Civil Revision No.371 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.371 of 2009 Date of Decision:22.01.2009 Jaibir ....appellant Versus Inder Singh .....respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.Anurag Jain,Advocate for the appellant **** RAKESH KUMAR GARG J. As per the facts averred in the present revision petition, a decree was passed in favour of the petitioner and against the respondent for recovery of Rs.5,39,500/- which includes principal amount of Rs.3,25,000/- and interest of Rs.2,14,500/- from the date of mortgage deed till the date of institution of the suit i.e.26.04.2003 with future interest @ 6% per annum from the date of judgment till the actual realization of decretal amount. Still not satisfied, the plaintiff preferred an appeal on the ground that the trial Court had omitted to grant costs,interest pendente lite and further that the Court was bound to grant interest at the agreed rate of interest i.e.24% per annum as stipulated in the mortgage deed. The Lower Appellate Court vide its judgment dated 17.10.2007 held as under: “As a sequel of my above discussion, the appeal filed by plaintiff succeeds and the same is hereby allowed with cost and the plaintiff is entitled to pendente lite interest @ 2% per month on Rs.3,25,000/- from the date of filing the suit till Civil Revision No.371 of 2009 2 realization. The judgment and decree is modified to that extent. Decree sheet be prepared accordingly. Lower Court record be sent back along with copy of this judgment and appeal. File be consigned to record room.” In pursuance of this judgment, the decree was drawn by the Lower Appellate Court in following terms: “ It is ordered that the appeal filed by plaintiff succeeds and the same is hereby allowed with costs and the plaintiff is entitled to pendente lite interest @ 2% per month on Rs.3,25,000/- from the date of filing the suit till realization. The judgment and decree is modified to that extent.” The petitioner moved an application for correction of the judgment and decree dated 17.10.2007 before the Lower Appellate Court submitting therein that the appellant was awarded interest @ 24% per annum on the suit amount i.e.5,39,500/- but due to inadvertence in the judgment and decree this amount has been wrongly typed as Rs.3,25,000/- instead of Rs.5,39,500/- and therefore the aforesaid error being typographical and clerical is required to be corrected. The said application was opposed by the respondent on the ground that the appellate Court has rightly awarded interest @ 24% per annum on the principal amount of Rs.3,25,000/- and the Court has no jurisdiction to change the principal amount under the garb of making a correction. The Additional District Judge, Hisar, vide impugned order dated 09.09.2008 has rejected the aforesaid application filed by the petitioner holding that the interest was awarded on the principal amount of Rs.3,25,000/- which was assessed as principal amount and therefore it cannot be said that it was a typographical and clerical error which can be corrected by way of the application filed by the petitioner and the principal Civil Revision No.371 of 2009 3 amount so determined by the Appellate Court cannot be changed in the application for correction and the same is beyond the scope of Sections 152-153 CPC and rejected the application filed by the petitioner. By way of the present revision petition the petitioner has challenged the aforesaid order dated 09.09.2008 passed by the Additional District Judge, Hisar. Learned counsel for the petitioner has vehemently argued that the suit amount was Rs.5,39,500/- and pendente lite interest etc.was to be awarded on the aforesaid suit amount and it was due to inadvertence and typographical error that while delivering the judgment, suit amount was mentioned as Rs.3,25,000/-. Elaborating his argument further learned counsel for the petitioner argued that the trial Court passed the decree for recovery of Rs.5,39,500/- along with the future interest @ 6% per annum to be paid from the date of judgment till realization and the petitioner filed an appeal for not granting litigation cost and pendente lite interest and less rate of interest than the agreed rate of interest between the parties by the trial Court, and thus the scope of appeal before the Lower Appellate Court was limited to that extent and Lower Appellate Court could not have reduced the suit amount from Rs.5,39,500/- to Rs.3,25,000/- for granting of interest. It was further contended that the Courts have ample power to entertain and grant such prayers within the provisions of Section 152 CPC. In support of his case, learned counsel has relied upon a judgment of this Court in the case of Central Bank of India vs.Narain Singh 2001(1) Civil Court Cases 458 I have heard learned counsel for the petitioner. A perusal of the judgment and decree dated 17.10.2007 of the Lower Appellate Court would show that while accepting the appeal qua the element of rate of interest the Lower Appellate Court has held that petitioner is entitled to pendente lite interest @ 24% per annum on an Civil Revision No.371 of 2009 4 amount of Rs.3,25,000/-. The contention of the petitioner that the suit amount was Rs.5,39,500/- and the same was written as 3,25,000/- accidentally or inadvertently, is misconceived. From the entire judgment of the Lower Appellate Court it cannot be made out that there was any intention of the Lower Appellate Court to grant pendente lite @ 24% per annum to the petitioner on an amount of Rs.5,39,500/- instead of Rs.3,25,000/-. It is relevant to mention that while decreeing the suit, decree sheet of the trial Court was drawn as under: “It is ordered that the suit of plaintiffs succeeds is hereby decreed for recovery of Rs.5,39,500/- from the deft, which includes principal amount of Rs.3,25,000/- and interest of Rs.2,14,000/- from the date of mortgage deed till the date of institution of suit i.e.26.04.2003 with future interest @ 6% p.a.from the date of judgment till the actual realization of decretal amount.” From the aforesaid fact, it is clear that even the trial Court has decreed the suit of petitioner only for a principal sum of Rs.3,25,000/- and not for Rs.5,39,500/- as argued. Trial Court had decreed a sum of Rs.2,14,500/-as interest @ 24% per annum on the principal amount of Rs.3,25,000/- from the date of mortgage upto the date of institution of the suit(i.e.from 27.07.2000 up to 26.04.2003). The contention of the petitioner before the Lower Appellate Court was that no interest pendente lite(i.e.from 27.04.2003 up to 24.01.2007) was granted and further interest @6% per annum from the date of decree is less as he is entitled to 24% per annum on the basis of mortgage deed between the parties and the same was allowed also. In fact the petitioner has tried to mislead the Court by arguing that principal amount was adjudged as Rs.5,39,500/- by the trial Court and he is entitled to interest pendente lite and future interest @ 24% Civil Revision No.371 of 2009 5 per annum on that amount. No such relief has been granted to the petitioner by the trial Court. By making this application for correction under Section 152 CPC the petitioner wants to get the relief which was not even his claim before the trial Court and which was never granted to him i.e.petitioner wants to claim interest @24% per annum over the interest amount of Rs.2,14,500/- to which he has been held entitled to, w.e.f.27.07.2000 up to 26.04.2003. There is neither any such claim made by the petitioner in the suit nor any such claim has been decreed by the trial Court. The claim of the petitioner on the basis of the mortgage deed is recovery of Rs.3,25,000/- along with interest @ 24% per annum from the date of mortgage till its realization. Thus, under the garb of this application the petitioner wants to change the judgment of the Lower Appellate Court on merits. In any case,If the petitioner feels that he is entitled to the interest pendente lite @ 24% per annum on an amount of Rs.5,39,500/- then he should have challenged the judgment and decree of the Lower Appellate Court. Since no such appeal has been filed by the petitioner, therefore, under the garb of this application an attempt was made to cover up the same which is not permissible under the law. Thus the judgment cited by the petitioner is not applicable in the facts and circumstances of the case. A Division Bench of this Court in the case of Matu Ram & others versus Union Territory of Chandigarh 1988(1)PLR 8, while discussing the scope of Section 152 CPC held as under: “In these circumstances, it cannot be said that while passing the said order, the Court omitted to do something which it wanted to do or it did something which it did not want to do and that the omission in this regard was as a result of some clerical or arithmetical mistake. The case Civil Revision No.371 of 2009 6 would, therefore, fall outside the ambit of Section 152 of the Civil Procedure Code. If the Court committed a mistake in dismissing the letters patent appeal filed by the applicants the on error that respect can be corrected only by means of an application for review of the judgment and the present application, if treated as an application for review of the order dated January 17,1985, would be barred by time. As no application under Section 5 of the Limitation Act has been filed for condoning the delay, the application would not be maintainable. However, this does not preclude us for treating his application as an application for correcting the error in the judgment of the learned Single Judge dated August 27, 1984, and we treat it accordingly.” In the aforesaid case, the Land Acquisition Collector passed an Award on June 23, 1980 awarding compensation @ 33,000/- per acre. The District Judge, vide his Award dated 02.06.1983 passed under Section 18 of the Land Acquisition Act enhanced the compensation to Rs.76,000/- per acre. Learned Single Judge of the High Court vide judgment dated 27.08.1984 allowed the appeal and determined the market value of the acquired property at the rate of Rs.80,000/- per acre. He also directed that the claimant shall be paid solatium at the rate of 15% and interest at the rate of 6% from the date of taking possession till payment thereof. The land owners thereafter filed a letters patent appeal claiming that the market value of the property be raised to Rs.1,00,000/- per acre. This LPA was dismissed by a Division Bench vide order dated 17.01.1985. After the decision of this said letters patent appeal one of the land holders-appellant Matu Ram died. His legal representatives and other appellants moved an application praying that they be granted benefit of enhanced solatium and interest and additional compensation as envisaged by the Amending Act of Civil Revision No.371 of 2009 7 68 of 1984. While dealing with this application, the argument was raised that the said benefit which was available to the claimants under the Amending Act was made by the Court and therefore the Court has powers under Section 152 CPC to make correction of the same. However, the Division Bench rejected the contention of the applicants. For the reasons recorded above, I find no merit in this petition as the same is totally frivolous. The petition is dismissed with costs which are assessed at Rs.5000/-. The respondent is entitled to recover these costs in accordance with the law. (RAKESH KUMAR GARG) JUDGE 22.01.2009 neenu