MRS. SWARNA SARMA AND ORS. Vs. UTTAM CHANDRA MEDHI
HIGH COURT OF GAUHATI
Mrs. Swarna Sarma And Ors.
Uttam Chandra Medhi
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C. Sanjeeva Row Nayudu, J. -
(1.) THIS is an application filed under Sections 151 and 152 of the Code of Civil Procedure for correction/amendment of the decree passed in First Appeal No. 34 of 1958 by this Court. The judgment and decree in that appeal was passed by two learned Judges of this Court, wherein they ordered that one -third of the property alone can be given to the Plaintiff in view of their judgment in Title Appeal No. 35 of 1957. Accordingly, the right and title of the Plaintiff in Title Suit No. 18 of 1955, from which apparently the appeal arose, were declared to the extent of one -third of the suit property. It was further held that the Plaintiff will get khas possession of the same on partition and proportionate cost of that suit.
(2.) MR . Lahiri, the learned Counsel for the Petitioners contends that as mesne profits were awarded by the trial Court and were made the subject -matter of the appeal before this Court by the Defendant, their Lordships must have considered this matter and given in the judgment a decision as to the right of the Plaintiff in the proceedings to get mesne profits. The argument of Mr. Lahiri amounts to this that the learned Judges who disposed of the first appeal before them, did not address themselves to this issue and, therefore, did not give a finding and a decision thereon. If these are the premises, then, as already pointed out by us in an earlier order arising out of execution proceedings, the remedy that is open to the present Petitioners was either to question the judgment and decree of this Court in appeal by preferring an appeal to the Supreme Court or applying for a review of the judgment, if it was felt that some omission or error of law had been committed by the Court. No review application has been made but Mr. Lahiri points out that they have taken the matter in appeal to the Supreme Court and the appeal is pending. If that is so, then this error said to have been committed by a Bench of this Court certainly can be corrected by the Supreme Court if that Court is satisfied that there was such an error and omission to dispose of the appeal on one of the issues arising in the case. It would be difficult to consider that the omission to dispose of an issue in appeal could be regarded as an accidental omission or a slip to bring the case within Section 152 of the Code of Civil Procedure, which is as follows:
152. Amendment of judgments, decrees or orders -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.
It is clear from the language of the section that the whole object of the section is to give a kind of quick and summary power to the Court to correct its own clerical or arithmetical mistakes arising from any accidental slip or omission. This section thus cannot be put into service lo replace the provisions to review a judgment.
(3.) IT is clear from the order of the Bench of this Court that decided the case, that they had applied their mind to the merits of the case and they only chose to include in their operative portion of the order directions relating to the shares of the property, possession and costs. If it was the intention of the Court to award mesne profits as well or to confirm the decree for mesne profits given by the Court below, they would have said so expressly. We do realise that there has been no doubt an unfortunate omission to deal with the issue in the case, namely, whether the plaintiff was entitled to a decree for mesne profits or not and, if so, to what extent he is so entitled. In our opinion the omission to do this is certainly not an accidental omission or an arithmetical or clerical mistake.;
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