Narayan Shukla, J. - (1.) BEING aggrieved with the order dated 4th of October, 2008, passed by the Civil Judge (Senior Division), Unnao, whereby the order dated 3rd of March, 1997 has been amended as well as with the order dated 13th of July, 2010, passed by the revisional court, the petitioners have filed the instant writ petition.
(2.) ON the suit filed by one Raj Kishore Srivastava, the trial court passed an ex parte preliminary decree in favour of the plaintiff, determining his share as 4/15 in the light of dispute, as none of the defendants appeared. Thereafter the defendant No. 10 moved an application under Order 9 Rule 13 CPC, which was dismissed on 4th of January, 2000 for want of prosecution. Thereafter she chose to move an application under Section 152 CPC for correction of order dated 3rd of March, 1997, which has been corrected by means of order dated 4th of October, 2008. The learned Counsel for the petitioner Mr. Adnan Ahmad, submits that the scope of Section 152 CPC is very limited and it permits only the correction of clerical and arithmetical mistake. It does not permit in any manner to determine the issue, whereas under the garb of the said application, the shares of other parties have been determined. In support of his submission, he cited a case i.e. Dwaraka Das v. State of M.P. and Anr. reported in : 1999 (3) Supreme Court Cases 500 relevant paragraph 6 of which is quoted hereunder: 6. Section 152 CPC provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders of errors therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistakes by the court of its ministerial actions and does not contemplate of passing effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, the court or the tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. The corrections contemplated are of correcting only accidental omissions or mistakes and not all omissions and mistakes which might have been committed by the court while passing the judgment, decree or order. The omission sought to be corrected while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 for which the proper remedy for the aggrieved party is to file appeal or review application. It implies that the section cannot be pressed into service to correct an omission which is intentional, however, erroneous that may be. It has been noticed that the courts below have been liberally construing and applying the province of Sections 151 and 152 of the CPC even after passing of effective orders in the list pending before them. No court can, under the cover of the aforesaid sections, modify, alter or add to the terms of its original judgment, decree or order. In the instant case, the trial court had specifically held that respondent -State liable to pay future interest only despite the prayer of the appellant for grant of interest with effect from the date of alleged breach which impliedly meant that the court had rejected the claim of the appellant insofar as pendente lite interest was concerned. The omission in not granting the pendente lite interest could not be held to be accidental omission or mistake as was wrongly done by the trial court vide order dated 30.11.1973. The High Court was, therefore, justified in setting aside the aforesaid order by accepting the revision petition filed by the State.
(3.) IT is not in dispute that the petitioners have already been the defendants in the same and only the share of the plaintiff Raj Kishore Srivastava was determined, that too without making any observation in the order. Upon perusal of the order dated 3rd of March, 1997, I find that the court below has taken notice of the statement made in the plaint as well as the affidavit filed in support there of, without making any observation for determination of share, whereas, I am of the view that even if he was proceeding ex parte , he was under obligation to discuss the merit of the case on the basis of the pleadings available before him, but that is missing and it is also not in dispute that only under the order of amendment, the plaintiffs share has been determined, which is under challenge before this Court. Therefore, the plaintiff cannot take any benefit of the said order made in his favour.;