High Court of KeralaSingle Judge2013-01-10Civil Revision Petition allowed; lower order se...

South Indian Bank Ltd. v. George Varughese and others

Case / Petition Number:CRP No. 14 of 2008; I.A. Nos.2700/07 & 2701/07 in OS No.79 of 1995 on the file of the Principal Sub Court, Thiruvananthapuram

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: The Hon. Mr. Justice M.L. Joseph Francis
Judgment Date: 2013-01-10
Court Decision / Holding: This Civil Revision Petition is allowed. The order dated 25.9.2007 in I.A. Nos. 2700/2007 and 2701/2007 in O.S. No. 79 of 1995 is set aside, the interlocutory applications are allowed, and the court below is directed to carry out the necessary corrections in the judgment and decree. There is no order as to costs.
Final Disposition: Civil Revision Petition allowed; lower order set aside; corrections to judgment and decree to be carried out; no costs.

Parties to the Case

Appellants / Petitioners

The South Indian Bank Ltd.

Respondents

Mr. George Varughese, Sole Proprietor - Malayil Marketing Services, Murinjapalam, Thiruvananthapuram
Mr. T.G. Alexander, Thottumukkathu House, Priyadarsini Junction, Ulloor, Thiruvananthapuram
Mr. Prince Thomas, Thottumukkathu House, Priyadarsini Junction, Ulloor, Thiruvananthapuram

Legal Representation & Advocates

Counsels for Petitioners

• Sri.K.K.John
• Sri.Ashish K.John

Counsels for Respondents

• Sri.Sha ji P. C haly

Case Synopsis & Summary

This High Court of Kerala (Ernakulam) decision in CRP No. 14 of 2008 concerns amendments to a money decree in OS No. 79 of 1995 filed by The South Indian Bank Ltd. The decree, dated 29 May 1995 (with subsequent amendment on 9 July 1996) allowed recovery of the plaint amount with interest and costs, and later permitted recovery by sale of the plaint schedule property. Clerical/arithmetic mistakes were found in the decree: the suit date appeared as 24 November 1995 instead of 24 January 1995, and the decree date as 29 July 1995 instead of 29 May 1995. The Bank moved I.A. Nos. 2700/2007 and 2701/2007 on 1 June 2007 for amendment of the decree and judgment to reflect the correct dates, arguing that Section 152 CPC permits correction at any time and that Article 136 of the Limitation Act governs execution, not amendment. The respondents opposed on the ground that 12 years had elapsed since the decree and the original decree could be executed no more; the trial court dismissed the applications. The High Court allowed the Civil Revision Petition, holding that correction under Section 152 is discretionary and not time-bound (supported by Sankaran Nair v. Parameswaran Nampoodiripad and K.C. Yasoda v. The Manager), and that amendments can be made in the interest of justice. The court set aside the lower order, and directed the necessary corrections, with no costs.

Provisions of Law Cited

Section 152 of the Code of Civil Procedure (CPC)Article 136 of the Limitation Act, 1963

Legal Doctrines & Maxims

Correction under Section 152 CPC is discretionary; there is no time limit for its exercise ('at any time'); correction should not prejudice any party and records must be true; equity considerations may govern whether to amend in a given case.

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant bank argued that Section 152 CPC permits correction of clerical/arithmetical errors in judgments, decrees or orders at any time, and that the error in dates in the decree is clerical; Article 136 deals with execution, not amendment; correcting the decree does not create a new cause of action and does not prejudice the rights of innocent third parties. The 12-year limitation argued by the respondents does not apply to amendments under Section 152, as the correction is an incidental, not substantive, proceeding. The bank relied on Sankaran Nair v. Parameswaran Nampoodiripad (1969 KLT 462) and K.C. Yasoda v. The Manager (2007 KHC 3463) to support unlimited time for correction and computation of limitation from the date of amendment, respectively.

Contentions of Respondents

The respondents contended that more than 12 years had elapsed since the decree, making the deck-ed execution time-barred; thus the interlocutory applications for amendment were barred by limitation. They supported the trial court’s dismissal and argued that correction, if allowed, could reopen settled rights and undermine finality, and that Article 136 governs execution, limiting attempts to amend after the prescribed period.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Sankaran Nair v. Parameswaran Nampoodiripad	1969 KLT 462	Positive	Cited to support that Section 152 CPC correction is discretionary and has no time limit; correction can be made at any time and should consider equity and true records.
K.C. Yasoda v. The Manager	2007 KHC 3463	Positive	Cited to justify computing limitation from the date of amendment of the decree and to support correction of decree based on amended dates.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 10TH DAY OF JANUARY 2013/20TH POUSHA 1934 CRP.No. 14 of 2008 ( ) ---------------------I.A.NOS.2700/07 & 2701/07 IN OS.79/1995 ON THE FILE OF THE PRINCIPAL SUB JUDGE, THIRUVANANTHAPURAM. ## PETITIONER/PETITIONER/PLAINTIFF: ------------------------------------------------- THE SOUTH INDIAN BANK LTD., REGISTERED OFFICE AT TRICHUR, MAIN BRANCH AT SPENCER JUNCTION THIRUVANANTHAPURAM REPRESENTED BY ITS CHIEF MANAGER. BY ADV. SRI.K.K.JOHN SRI.ASISH K.JOHN ## RESPONDENT(S)/RESPONDENTS/DEFENDANTS: ----------------------------------------------------------------- 1. MR. GEORGE VARUGHESE, SOLE PROPRIETOR - MALAYIL MARKETING SERVICES MURINJAPALAM THIRUVANANTHAPURAM RESIDING AT MALAYIL HOUSE NALANCHIRA THIRUVANANTHAPURAM. 2. MR. T.G.ALEXANDER, THOTTUMUKKATHU HOUSE PRIYADARSINI JUNCTION ULLOOR THIRUVANANTHAPURAM. 3. MR. PRINCE THOMAS, THOTTUMUKKATHU HOUSE PRIYADARSINI JUNCTION ULLOOR THIRUVANANTHAPURAM. R,R1 BY ADV. SRI.SHAJI P.CHALY THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 7-01-2013, THE COURT ON 10.1.2013 PASSED THE FOLLOWING: ## **M.L.JOSEPH FRANCIS, J. ----------------------------------------------C.R.P.14 of 2008 ----------------------------------------------Dated 10[th] January, 2013.** ## **O R D E R** This Civil Revision Petition is filed by the petitioner/ plaintiff in I.A.Nos.2700 and 2701 of 2007 in O.S.No.79 of 1995 on the file of the Principal Sub Court, Thiruvananthapuram. 2. The facts of the case, as mentioned in the Civil Revision Petition are briefly as follows : The plaintiff in O.S.No.79 of 1995 on the file of the Principal Sub Court, Thiruvananthapuram is the revision petitioner. In the suit for recovery of `3,50,442.95 with interest thereon at 21.25% per annum with quarterly rests from the date of the suit till realisation, by sale of the plaint schedule properties, a decree was passed on 29.5.1995 allowing the plaintiff bank to recover the plaint amount with interest and costs from the defendants and their assets. There was no charge allowed by the decree for sale of the property mortgaged, though the property was described in the schedule to the decree. Hence the plaintiff applied for amendment of the decree which was allowed by the court on 9.7.1996 allowing recovery of the plaint amount by sale of the plaint schedule property as well. Thereafter, two 2 C.R.P.14 of 2008 errors were found in the decree and judgment, that the date of filing the suit was mentioned as 24.11.1995 instead of 24.1.1995 and the date of the decree was wrongly mentioned as 29[th] July 1995 instead of 29[th] May 1995. Both these defects crept in at the time of drafting of the decree were not noticed by the petitioner, as it was not connected with the operative portion of the decree. Hence the plaintiff Bank filed I.A.Nos.2700 and 2701 of 2007 for amendment of the decree and judgment incorporating the correct date of suit and date of decree. 3. The respondents in the interlocutory applications filed objections, stating that 12 years have already passed after the passing of the decree and therefore, the execution of the original decree itself is barred by limitation and it is not executable. The interlocutory applications are not maintainable, as they are highly belated. The court below dismissed both the above petitions for amendment on the ground that the decree itself was barred by limitation. Against that common order, the petitioner filed this Civil Revision Petition. 3 C.R.P.14 of 2008 4. Heard the learned counsel for the revision petitioner and the learned counsel for the contesting respondents. 5. At the time of argument, the learned counsel for the revision petitioner advanced the following arguments : The finding of the court below that the decree dated 29.5.1995 ought to have been executed on or before 29.5.2007 is not correct. Under Article 136 of the Limitation Act, the time prescribed is for filing an Execution Petition and not for execution of the decree. An Execution Petition pending on that day could be continued and the decree could be executed even after the period of 12 years. The view taken by the court below that the petition for amending the decree and judgment after a period of 12 years is not maintainable since the original decree itself cannot be executed at this stage is fallacious. The correction of the decree has nothing to do with the executability of the decree. The court failed to note the legal principle that for the exercise of the power of correction under Section 152 of the Code of Civil Procedure (for short, 'the CPC') there is no 4 C.R.P.14 of 2008 time limit. It can be exercised at any time; even after the decree has been fully satisfied and recorded as such. The learned counsel for the contesting respondents supported the order of the court below. 6. Section 152 of the CPC provides that clerical or arithmetical mistakes in the judgments, decrees or orders, or errors arising therein from any accidental slip or omission may, at any time, be corrected by the court either by its own motion or on the application of any of the parties. Article 136 of the Limitation Act provides that for execution of any decree (other than a decree granting a mandatory injunction) or order of any civil court, the period of limitation is 12 years and the time from which the period begins to run is when the decree or order becomes enforceable. This Article is not applicable in respect of an application for amendment of the judgment and decree. The words “at any time” occurring in Section 152 of the CPC are meaningful and make it clear that there is no period of limitation prescribed for filing such applications. 7. In the decision reported in Sankaran Nair v. C.R.P.14 of 2008 5 ## Parameswaran Nampoodiripad (1969 KLT 462), it was held in paragraph 20 as follows : “(1) The power of correction under S.152 of the CPC is discretionary; (2) There is no time limit for its exercise. It can be exercised at any time even after the decree has been fully satisfied and recorded also as such; - (3) The only limitation for its exercise is the scope of the Section within which it functions; and (4) Before exercising or refusing to exercise it, it has to be borne in mind that to take care to see that none of its acts causes any injury to any of the suitors and to see that its records are true are two of the important duties of all courts and that at the same time it would be inequitable to order amendment when rights have been the acquired under the erroneous decree by innocent third parties or when any other principle of equity is offended. As to which of those considerations should be given greater importance than the others and which of them should prevail in cases of conflict are matters for the exercise of sound judicial discretion which in turn depends on the facts and circumstances of each case.” 8. In the decision reported in K.C.Yasoda v. The Manager (2007 KHC 3463) a decree was passed in 1991 and correction of decree was effected in 1994 and it was held that 6 C.R.P.14 of 2008 the period of limitation to execute the decree has to be computed from the date of amendment of the decree. In the present case, the judgment and decree was passed on 29.5.1995 and the judgment and decree was amended and modified on 9.7.1996. I.A.Nos.2700 and 2701 of 2007 in O.S.No.79 of 1995 were filed on 1.6.2007, within 12 years from the date of the amended decree. Section 152 of the CPC is based on two principles, viz., (i) the act of the court should not prejudice any party and (ii) the courts have the duty to see that the records are true and present the correct state of affairs. Considering all these aspects of the matter, I am of the view that the court below is not justified in dismissing the interlocutory applications and in the interest of justice, I.A.Nos.2700 and 2701 of 2007 in O.S.No.79 of 1995 have to be allowed. Accordingly, this Civil Revision Petition is allowed and the order in I.A.Nos.2700 and 2701 of 2007 in O.S.No.79 of 1995 on the file of the Principal Sub Court, Thiruvananthapuram dated 25.9.2007 is set aside and those interlocutory C.R.P.14 of 2008 7 applications are allowed. The court below is directed to carry out necessary corrections in the judgment and decree. There is no order as to costs. Sd/- ## **M.L.JOSEPH FRANCIS, JUDGE.** tgs (true copy)