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TIPS & EXPERT ADVICE ON ESSAYS, PAPERS & COLLEGE APPLICATIONS

The test for amendment is whether the order as it stands represents the intention of the judge at the time he made it and if it does, then the mistake in it cannot be treated as an accidental slip or omission which may be corrected under S. 152, C.P.C. A mistake arising from an oversight on the part of the court can be corrected under S. 152. Where by inadvertence or oversight an entry as to pleader’s fee was made without giving any consideration to the question of calculation, it can be amended.

Section 152, C.P.C. should not be given a narrow construction. It gives power to rectify any accidental slip or omission in a judgment, decree or order and might include any accidental slip or omission- traceable to the conduct of the parties themselves.

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In making the correction the court cannot go into any disputed questions, nor could it correct errors anterior to the proceedings before it. For such a purpose, the proper proceeding is by way of a suit under S. 31, Specific Relief Act, 1877 (S. 26 of the 1963-Act).

Words used in S. 152 are ‘at any time’, which show that the power of the court to rectify clerical or arithmetical mistakes in the judgments or decree sheets is not controlled by time factor. No doubt, it is true that Art. 137 of the Limitation Act prescribes a period of three years for making application under any enactment but the period of limitation prescribed by it will not apply to applications under S. 152 of the Code.

Section 29 (2) of the Limitation Act makes it evident that where any special law prescribes limitation that will be deemed to be substituted in the Schedule to the Limitation Act. If S. 152 is read along with S. 29 (2) of the Limitation Act, it would be clear that the words ‘at any time’ in S. 152 would be deemed to have been substituted in place of the period prescribed in the article. Therefore an application can be filed for rectifying any clerical or arithmetical mistakes in judgments and decrees at any time.

There is no period of limitation prescribed for moving an application under S. 152, C.P.C. either in the Limitation Act or elsewhere. Consequently, an application under S. 152 can be entertained by the court after any lapse of time provided no third party has acquired a vested interest therein. Subject to these conditions the court is free to exercise its powers under S. 152, C.P.C.

Law of limitation is restrictive of a litigant’s right and unless there is any particular section or article of the law of limitation which may bar the moving of the application the bar cannot apply. Rules of limitation are applicable to the acts to be performed by the litigants and do not apply to acts which the court has to or may perform suo motu. Sections 151, 152 and 153, C.P.C. deal with special powers of the court which can always be pressed into service by the court suo motu in order to correct mistakes, etc., and also to be justice between the parties.

From the very nature of these powers, there cannot be any restrictions of limitation on the act of the court. Section 152 is an enabling provision to correct errors of the type mentioned therein. The court has unlimited power once it finds such errors and it is the imperative duty of the court to correct them forthwith.

Under S. 152, C.P.C., the court has the power not only to correct its own mistakes which arise in the judgment, decree and order but it can also correct those mistakes which may have been initially committed by the parties in the pleadings which were then repeated in the judgment, decree and order of the court.

The court, therefore, has power to correct in appropriate case where the nature of the mistake and other circumstances justify allowing the amendment sought. No such amendment can, however, be allowed when rights of third party get involved and are likely to be adversely affected.

Amendment of decree:

In a suit for decree in terms of arbitration award, mistake in not granting pendente lite interest to decree holder by arbitrators and trial Court, cannot be corrected under section 152 of the Code.

Open court verdicts can be altered sparingly:

The Supreme Court has held in Vi[nod Kumar Singh v. Banaras Hindu University, that though the court has undoubted power to alter or modify a judgment, delivered but not signed, such power should be exercised judicially, sparingly and for adequate reasons.

When a judgment is pronounced in open court, parties act on the basis that it is the judgment of the court and that the signing is a formality to follow. A Division Bench comprising Mr. Justice Ranganath Misra and Mr. Justice Ranganathan observed that only after a judgment was both pronounced and signed that alterations or additions were not permissible except under the provisions of section 152 (amendment of judgments, decrees or orders) or S. 114 (review) of the Code of Civil Procedure or, in very exceptional cases, under S. 151 (saving of inherent powers of court) of the Code of Civil Procedure.

A judgment pronounced in open court should be acted upon unless there be some exceptional feature and if there be any such, the same should appear from the record of the case. The Hon. Judges said that ordinarily a judgment was not delivered till the hearing was completed by listening to submissions of counsel and perusal of records and a definite view was reached by the court in regard to the conclusion.

Once that stage is reached and the court pronounced the judgment, the same should not be reopened unless there be some exceptional circumstances or review is asked for and is granted.

Often on the basis of such pronouncement, the parties present in court know the conclusion in the matter and proceed to conduct their affairs. If what is pronounced in court is not acted upon, certainly litigants would be prejudiced. Confidence of the litigants in the judicial process would be shaken, the Hon. Judges observed.

According to the verdict, Vinod Kumar Singh passed the Bachelor’s examination in law from the Banaras Hindu University with 54.4 per cent marks and was placed in second division. He applied for admission in the Master’s course in Law in 1979 but the university had prescribed a minimum 95 per cent on the average of three years of the degree courses as the qualifying requirement.

The applicant claimed weight age on the basis that members of his family had donated land and houses in the university and cited a precedent. Ultimately, he moved a writ petition in the Allahabad High Court.

On July 28, 1986, the petition was taken up for hearing by a High Court Division Bench and when the hearing was concluded, a judgment was dictated in open court allowing the writ petition and directing the university to admit the appellant.

The appellant applied for a certified copy of the judgment but was told that the matter was again in hearing list and would be heard afresh. The matter continued to appear in hearing list from September, 1986 to’ February 5, 1987, when the particular Division Bench which had heard the matter released the case to be taken up by another Bench.

But on March 23, 1987, the writ petition was dismissed by the new Division Bench. Aggrieved Vinod Kumar moved the Supreme Court Mr. Justice Misra and Mr. Justice Ranganathan observed that if the judgment delivered was intended not to be operative, good reasons should be given.

On these facts the Supreme Court allowed Vinod Kumar Singh’s petition and directed the university to admit him to the Master’s course, inasmuch as the Hon. Judges observed that there was no dispute that the writ petition had been allowed.

Correction of clerical error in the decretal order:

Where the decretal order drawn in the High Court as a result of inadvertence and through error introduced the words “mesne profits” instead of the words “net profits”, the error can be corrected by the High Court under Ss. 151 and 152 of the Code of Civil Procedure even though the appeals from the decree may have been admitted in the Supreme Court before the date of correction.

Appeal or Revision:

An order to amend a decree is different from the amended decree. A revision lies from the former order, but there lies an appeal from an amended decree. No appeal lies from an order granting or refusing amendment; only a revision lies.

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