IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 25TH JANUARY 2008 / 5TH MAGHA 1929 WP(C).No. 20680 of 2004(J) -------------------------- OS.340/2001 of ADDL.SUB COURT, PALAKKAD .................... PETITIONER: --------------------- THE DHANALEKSHMI BANK LTD., PALAKKAD DISTRICT, REP. BY BRANCH MANAGER. BY ADV. SRI.P.JACOB VARGHESE,SC,DHANALAKSHMI BANK LTD. RESPONDENTS: ------------------------ 1. K.P. SIVADAS, S/O. PARAMESWARAN, PROPRIETOR, PRIYANKA STORES, 26/321, BIG BAZAR, PALAKKAD-14. 2. K.P. HARIDAS, S/O. PARAMESWARAN, ALAPATH KALLINGAL HOUSE, MOOTHANTHARA, PALAKKAD-12. 3. V. RAJI, W/O. K.P. HARIDAS, DO. DO. R1 TO R3 BY ADV. SRI.K.P.BALAGOPAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.20680/2004 J APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF DECREE IN O.S.NO.340/01 IN THE FILE OF SUB COURT, PALAKKAD. EXT.P2: COPY OF ORDER IN I.A.3988/03 IN O.S.NO.340/01 IN THE FILE OF SUB COURT, PALAKKAD. /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 20680 OF 2004 = = = = = = = = = = = = = = = Dated this the 25th day of January, 2008. J U D G M E N T This writ petition is filed against the order of the Subordinate Judge, Palakkad in I.A.3988/03 in O.S.340/01. It was an application to amend the judgment and decree passed in the suit. The decree holder,Bank filed a suit for realisation of the amount by sale of the property described in the schedule and the balance if any to be realized from the defendants personally, jointly and severally and out of their assets. The matter was compromised between the parties and it is evident from the decree that refund of half Court fee is allowed in favour of the plaintiff. But the Court decreed the suit but did not take into account the prayer for a mortgage decree. The decree holder then moved the present application for amendment of the judgment and decree. The Court below had even gone to the extend of saying that there is no prayer for a charge decree. The very decree W.P.C 20680 OF 2004 -:2:- passed by that Court which extracts the prayer by the plaintiff would conclusively indicate what the prayer was to have a charge decree on the property and only for the balance if any, personal decree. Unfortunately the Court below has lost sight of it and dismissed the application on technical grounds. 2. The question that arise is whether we can classify these mistakes as a clerical or arithmetical mistakes in judgments or any accidental slip or omission so as to enable the decree holder to get the judgment and decree amended. The learned counsel for the Bank had cited before me the decision of this Court reported in Syamala v. Catholic Syrian Bank Ltd.2000 (2) KLT 491. In that this Court held that; “If it is imperative from the findings of the Court that a decree charged on the plaint schedule property should have been allowed, the failure to do so is unintentional W.P.C 20680 OF 2004 -:3:- and the result of an oversight and therefore it can be well corrected under Section 152 CPC.” 3. Here, it is very clear from the pleadings in the plaint that it has been consented to and agreed upon by the defendants and on the basis of such a consent, a consent decree is passed. The Court should have passed a decree making charge on the property and not otherwise. So the principle laid down in 2000 (2) KLT 491 squarely applies to the facts of the present case. Therefore the order under challenge is set aside. 4. So far as the prayer for amendment with respect to interest is concerned I feel that it cannot be corrected as a clerical or arithmetical mistake or an accidental slip or omission for the reason there is a specific order regarding the same which may indicate that the Court has applied the mind and disallowed the interest. So, the amendment application is allowed so far as it relates to a charge decree W.P.C 20680 OF 2004 -:4:- and therefore the Court below is directed to carry out the amendment in the judgment and decree to that extend and issue revised judgment and decree to the decree holder so as to enable him to proceed for execution as prescribed by law. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-