M.Y.EQBAL, J. - (1.) This application under Article 227 of the Constitution is directed against the order dated 20.4.2006 passed by Sub -Judge, I, West Singhbhum, Chaibasa whereby he has rejected the application filed by the petitioner under Sections 151 and 152 of the Code of Civil Procedure (shortly C.P.C.) for correcting the decree dated 23.6.2005 passed in Title Suit No. 5 of 2004 to the extent of allowing post decretal interest to be paid by the respondent to the petitioner.
(2.) THE facts of the case lie in a narrow compass: The petitioner -contractor entered into an agreement with the respondent -M/s. Hindustan Steel Works Construction Ltd. in connection with construction work of Right Dyke II Slice II of Icha dam. Dispute and differences arose between the petitioner and the respondent and the same was referred to the arbitration. Justice, Miss Manjula Bose (retired) acting as Umpire gave an award. The respondent challenged the award by filing objection under Sections 30 and 33 of the Arbitration Act, 1940 before the Sub -Judge, Chaibasa which was registered as Misc. Case No. 9 of 2004. The petitioner also filed application under Section 17 of the Act for making the award rule of the Court and for passing judgment and decree in terms of the award. The Sub -Judge, after hearing the parties, dismissed the Misc. Case in terms of the judgment and order dated 1.6.2005 and made the award rule of the Court. Accordingly a decree was drawn up. Since no post interest was awarded by the Court in the decree, an application was filed under Sections 151 and 152, CPC for making correction in the decree and awarding post decretal interest. The Sub -Judge, after considering the facts and circumstances of the case and after hearing the parties, dismissed the application on the ground that the prayer of the petitioner does not come within the ambit of Section 152, CPC. Hence, this writ application. I have heard Mr. P.K. Prasad, learned Counsel appearing for the petitioner, Mr. R.S. Mazumdar, learned Counsel appearing for the respondent and perused the impugned order. The Court below while rejecting the application of the petitioner mainly relied upon the decision of the Supreme Court in the case of K. Razamouli v. A.V.K.N. Swamy : [2001]3SCR473 , for the proposition that Court cannot award pendente lite interest under Section 152, CPC as it is not covered by accidental omission or mistake. In my opinion, before applying the ratio decided by the Supreme Court, the Court below has not correctly examined the facts of the case before the Supreme Court and the facts of the instant case. In the case before the Supreme Court the arbitrator gave an award for payment of the amount to the respondent. A suit was filed for passing decree in terms of the award and a decree was passed but the decree did not provide for any pendente lite interest. In the execution proceeding the decree holder claimed pendente lite interest which was rejected by the executing Court. A revision petition filed before the High Court was also dismissed. Thereafter, the decree holder filed an interlocutory application before the Trial Court for amendment of decree under Section 152, CPC which was also rejected and then a Civil Revision was filed. The Civil Revision was allowed by the High Court and interest was awarded by amending the decree of the trial Court. The matter ultimately came to Supreme Court. The Supreme Court, after considering the fact that neither the arbitrator nor the Court awarded pendente lite interest to the decree holder and the executing Court also refused to grant pendente lite interest to the decree holder which was upheld by the High Court, the same cannot be allowed by correcting the decree under Section 152, CPC. Their Lordships, in the context, observed as follows: Shri R. Venugopal Reddy, learned senior counsel appearing for the appellant then urged that where neither the Arbitrators nor the trial Court has awarded any pendente lite interest, it was not open to the High Court to exercise its jurisdiction under Section 152 of the Code of Civil Procedure apart from the fact that trial Court having refused to exercise that power, the same was then exercised in revision under Section 115, CPC by the High Court. The argument has merit. Section 152 provides that a clerical or arithmetical mistake 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 its own motion or on the application of any of the parties. The question, therefore, arises is whether, omission of pendente lite interest to the decree by the trial Court was an accidental or clerical error. In the case of Dwaraka Das v. State of M.P. : [1999]1SCR524 , it was held that omission is not granting the pendente lite interest could not be held to be accidental omission or mistake and therefore, neither the trial Court nor the appellant Court has power to award pendente lite interest under Section 152 of the Code of Civil Procedure. This decision is squarely applicable to the present case. In the present case, neither the arbitrators nor the trial Court awarded pendente lite interest to the decree holder. The executing Court also refused to grant pendente lite interest to the decree holder and the same was upheld by the High Court in the revision petition filed against the order of the executing Court. However, the position would be different where the judgment of a Court provides for pendente lite interest and decree omits to mention such interest. Such a mistake could be corrected under Section 152, CPC. The correct position of law 1st that a decree cannot add or subtract any relief except what has been provided in the judgment. But this is not the case here. Mr. B. Kanta Rao, learned Counsel appearing for the respondent then relied upon a decision of this Court in Janakirama Iyer v. Nilakanta Iyer : AIR1962SC633 . In this case, the trial Court awarded mesne profit, however, in the decree it was written as net profit. On an application filed by the plaintiff for correction of the decree under Section 152 of the Code of Civil Procedure, the award 'net' was substituted by 'mesne'. This was the case of typographical mistake and, therefore, not applicable to the present case.
(3.) IN the instant case, the Umpire gave an award of 18 per cent interest from a specific date till realization or till the date of the decree whichever is earlier. For better appreciation, the relevant portion of the award, given by Umpire whereby interest was awarded, is reproduced herein below: Claimant is entitled to both pendente lite and post lite interest at the rate of 18% p.a. on aforesaid sum of Rs. 27,72,674.81p and also on Rs. 1,04,243 -00 from 29th June. 1989 till 15th July, 1993 and further interest at same rate form 16th July, 1993 till realization/payment made by the respondent or till date of decree whichever is earlier on the aforesaid total sum of Rs. 28,76,917.81p.;