Petition for correction of judgment and decree is allowed in a pre-emption case
Heard. Seen. Perused the petition dated 11/09/2019, and the materials available on record. Upon such perusal, it appears that a judgment was passed by the court in granting the petitioner’s pre-empting rights over the suit property “in part”. Accordingly, the petitioner wants to take back the residual amount of money from the money deposited by him against the whole landed property. The petitioner contended that the judgment passed in his pre-emption case omits to mention any direction as to the residual amount of money because decree was passed in part (partial pre-emption). As a result, the aggrieved petitioner brought in this petition under section 152 of the 1908 Code of Civil Procedure with a prayer for amending the judgment so as to allow him to proportionately withdraw money once deposited by him in the original pre-emption case.
2. On
perusal of the case record, it appears that the judgment passed in this
pre-emption case was decreed in favor of the petitioner for 0.308 acre of
land; but, as per the valuation of the deed itself, the petitioner deposited on
this occasion Tk. 1,13,328 for 0.0655 acre of land described in the disputed
deed No. 1899/2014. In the body of the judgment, it is made very clear that
Tk. 90,000/ is decided as the value
of the deed for 0.0655 acre of scheduled lands [vide page 3 of judgment]. It also transpires that pre-emption was granted in favor of the
petitioner only for 0.308 acre of land, not for the whole
quantity of land (0.0655 acre). So, it is trite to say that the opposite
party should be allowed to withdraw money from the deposited amount according
to the lands pre-empted (0.308 acre). However, the court omits to mention
any direction as to how the deposited amount of money would be distributed
between the parties to the case. Rather, the court merely granted a partial
pre-emption with regard to the suit land described in the schedule to the
pre-emption application. Upon careful perusal of the materials on record and
the judicial sense of reasonability, it is the court’s view that the opposite
party should get money in accordance with the proportionate share of the land
pre-empted from the amount of money once deposited by the petitioner in this
case.
03. Now,
question arises whether the aggrieved petitioner is entitled to get such an
order by this court under section 152 of the 1908 Code of Civil Procedure. According
to section 152 of the 1908 Code of Civil Procedure, any 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. So, it applies to errors (in judgments or decrees)
arising from any accidental slip or omission, which may be corrected by the
court any time after passing of the order on the application of any of the
parties who seeks such correction. The language of Section 152 is based on the
presumption that the mistakes or errors are of such a nature, which could be
corrected without touching upon the merits of the matter.
04. Nevertheless,
one might think that the present case is not one where the so-called mistake in
the judgment can be reduced to a mistake or an error that is capable of being
corrected under Section 152 of The Code of Civil Procedure, and thus, this is
not a case that falls under the ambit of section 152. The court understands
that the salutary practice of a court becoming functus officio after a
judgment has been delivered is for the benefit of litigants who rely upon the
certainty of orders for an effective implementation thereof. There must also be
closure of proceedings so that parties can take the next course of action.
Litigants cannot remain in limbo as to the finality of orders and judgments
[AIR 1967 SC 1440].
05. However,
the opposite party did not submit any objection in writing although he was served
a notice and given an opportunity to present his objections. In addition, with regard to the propositions
just mentioned hereinbefore, and keeping such premise of legal positions, the
court thinks that a decree can also be corrected under section 152 read with
section 151 of the code when the mistake or error is on the part of the court,
not on the part of litigants. This is a well-established principle that every
court has inherent power to act ex
debitio justitiae. Moreover, this is a power to promote justice and prevent
abuse of the process of court. It is not deniable that courts should not
exercise this inherent power unless it is satisfied that it is necessary for
the ends of justice; and this power is to be exercised in very exceptional
circumstances.
06. As
such, for the ends of justice and in cognizance of the factual momentum, the
court is, therefore, of opinion that this is a perfect, fit, proper and an
exceptional case where the court should exercise its power granted under
section 152 of the code in conjunction with its’ inherent power. Basing on such
legal standings, the court is thus of the view that such an accidental error
arising from such an omission by the court to manifest how to distribute the
deposited money can now be corrected even after a judgment has been pronounced
and signed by the court. It is worth mentioning that in this respect, reaching
a decision should obviously be inclusive of all ensuing facts that surround it.
Accordingly, the court thinks it fit that allowing the very petition ‘shall not
prejudice’ any party to the case; rather, it will be ‘instrumental in leading
the case to its finality’. And as such, it appears to the court that the
petition dated 11/09/2019 should be allowed in the light of the provisions
mentioned hereinbefore.
Hence,
it ORDERED that the petition dated 11/09/2019 be allowed without costs. It is
hereby ordered that the last line of the operative portion of the judgment
dated 27.03.2019 be replaced with “The Opposite Party (O.P.) No. 1 is hereby allowed to withdraw the money deposited in his credit so adjudged in proportion to the
pre-empted land of 0.308 acres. The pre-emptor petitioner is also entitled
to withdraw the residual money.”