Full Judgment Text
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CASE NO.:
Appeal (crl.) 5556-57 of 1993
PETITIONER:
K. RAJAMOULI
RESPONDENT:
A.V.K.N. SWAMY
DATE OF JUDGMENT: 03/05/2001
BENCH:
V.N, KHARE & S.N. PHUKAN
JUDGMENT:
JUDGMENT
2001 (3) SCR 473
The following Order of the Court was delivered :
A dispute out of the partnership firm arose between the appellant and the
respondent With the result, the same was referred to arbitrations. The
arbitrators appointed by the parties entered into the reference and
appointed an Umpire, The Arbitrators, on 11.7.1987, gave an award for a sum
of Rs. 7,00,000 to be paid by the appellant herein to the respondent in
three instalments. The respondent filed a suit against the arbitrators and
the appellant. The said suit was numbered as Suit No. 1377/87. The prayer
in the suit was for a decree in terms of the arbitration award. The said
suit was decreed for a sum of Rs. 6,50,000. It is relevant to mention here
that the said decree did not provide for any pendente lite interest.
Thereafter, the decree holder put the decree in execution. In the execution
proceedings, the decree holder claimed pendente lite interest @ 24%.
However, the claim of interest by the respondent-decree holder was rejected
by the executing Court. The decree holder, thereafter, filed Civil Revision
Petition before the High Court against the order passed by the executing
Court. The said Revision Petition was dismissed by the High Court on
18.9.1991. The decree holder filed Interlocutory Application No. 1954/91
before the trial Court for amendment of the decree under Section 152 of the
Code of Civil Procedure. The prayer in the said interlocutory application
was to grant pendente lite interest. The trial Court, on 15.9.1992,
rejected the said application of the decree holder. The decree holder,
thereafter, preferred a Civil Revision Petition before the High Court
against the order of the trial Court rejecting the application. The said
Civil Revision Petition was numbered as C.R.P. No. 3077/92. The High Court,
on 27,11.1992, allowed the said Civil Revision Petition and awarded
interest to the decree holder by amending the decree of the trial Court. On
26,12.1992, the appellant herein filed a review before the High Court in
C.R.P. No. 3077/ 1992. During the pungency of the said review petition, the
appellant herein filed a Special Leave Petition against the main judgment
of the High Court dated 27.11.1993 on 10,1.1993, Subsequently, the said
special leave petition came up for hearing before a Bench of this Court on
1.2.1993. This Court summarily rejected the said special leave petition
without assigning any reason. On 2.3.1993 the appellant filed a Review
Petition before this Court in S.L.P.(c) No, 750/93. This review petition
was dismissed on 16 4,1993, On 7.2.1993 the High Court dismissed the review
petition. The appellant, thereafter, filed Special Leave Petition against
the order dated 17.2.1993 passed by the High Court rejecting the review
petition. This Court, on 29.10.1993, granted leave and the Special Leave
Petition was converted into this civil appeal.
Mr. B. Kanta Rao, learned counsel appearing for the respondent raised a
preliminary objection that earlier Special Leave Petition filed by the
appellant having been dismissed by this Court, the second Special Leave
Petition was not maintainable being barred by the principle of res
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judicata. In support of his contention, learned counsel relied upon the
decisions of this Court in Abbai Maligai Partnership Firm and Anr v, K,
Santhakumaran and Ors,, [1998] 7 SCC 386, Sree Narayana Dharmsanghom Trust
v, Swami Prakasanunda and Ors., [1997] 6 SCC 78 and State of Maharashtra
and Anr. v. Prabhakar Bhikaji Ingle, [1996] 3 SCC 463. Learned counsel
appearing for the appellant countered the argument by relying upon the
decision of three Judge Bench of this Court in Kunhayammed and Ors. v,
State of Kerala and Anr., [2000] 6 SCC 359. In this decision, it was held
that on dismissal of a special leave petition without giving any reason,
the main judgment of the High Court does not merge with the order of the
Apex Court and, therefore, the order of the Apex Court does not constitute
res judicata in case a Special Leave Petition filed against the order
passed in the review petition against the main judgment of the High Court.
In the said decision Abbai Maligai Partnership Firm’s case (supra) which is
also a three Judge Bench decision was considered and explained in paragraph
26 of the judgment which runs as under:
"The underlying logic attaching efficacy to an order of the Supreme Court
dismissing SLP after hearing counsel for the parties is discernible from a
recent three Judge Bench decision of this Court in Abbai Maligai
Partnership Firm v, K. Santhakumaran, [1998] 7 SCC 386. In the matter of
eviction proceeding initiated before the Rent Controller, the order passed
therein was subjected to appeal and then revision before the High Court.
Special leave petitions were preferred before the Supreme Court where the
respondents were present on caveat. Both the sides were heard through the
Senior Advocates representing them. The special leave petitions were
dismissed. The High Court thereafter entertained review petitions which
were highly belated and having condoned the delay reversed the orders made
earlier in civil revision petitions. The orders in review were challenged
by filing appeals under leave granted on special leave petition, This Court
observed that what was done by the learned single Judge was ’subversive of
judicial discipline.1. The facts and circumstances of the case persuaded
this Court to form an opinion that the tenants were indulging in vexations
litigations, abusing the process of the Court by approaching the High Court
and the very entertainment of review petitions (alter condoning a long
delay of 221 days) and then reversing the earlier orders was an affront to
the order of this Court. However, the learned Judges deciding the case have
nowhere in the course of their judgment relied on doctrine of merger for
taking the view they have done. A careful reading of this decision brings
out the correct statement of law and fortifies us in taking the view as
under."
In nutshell, the decision in the case of Abbai Maligai Partnership Firm was
distinguished on the ground that the question of merger of the judgment of
the High Court with the order of Supreme Court dismissing the special leave
petition was not considered and further in Abbai Maligai Partnership Firm’s
case (supra) the review petition was filed after a long delay of 221 days
after the special leave petition was dismissed by the High Court which was
held to be abuse of process of law.
Following the decision in the case of Kunhayammed & Ors, (supra) we are of
the view that the dismissal of the special leave petition against the main
judgment of the High Court would not constitute res judicata when a special
leave petition is filed against the order passed in the Review Petition
provided the review petition was filed prior to filing of special leave
petition against the main judgment of the High Court The position would be
different where after dismissal of the special leave petition against the
main judgment a party files a review petition after a long delay on the
ground that the party was prosecuting remedy by way of special leave
petition. In such a situation the filing of review would be as abuse of the
process of the law. We are in agreement with the view taken in Abbai
Maligai Partnership Firm (supra) that if High Court allows the review
petition filed after the special leave petition was dismissed after
condoning the delay, it would be treated as affront to the order of the
Supreme Court. But this is not the case here. In the present case, review
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petition was filed well within time and since the review petition was not
being decided by the High Court, the appellant filed the special leave
petition against the main judgment of the High Court. We, therefore, over-
rule the preliminary objection of the counsel for the respondent and hold
that this Appeal arising out of special leave petition is maintainable.
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 of 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. and Am, [1999] 3 SCC 500, it was held that the omission in
not granting the pendente lite interest could not be held to be accidental
omission or mistake and therefore, neither the trial Court nor the
appellate 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 is 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 Janakiramma lyer v. Nilakanta lyer, [1962] suppl. 1 SCR 206. 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 word ’net’ was substituted by ’mesne1. This was the case of
typographical mistake and, therefore, not applicable to the present case.
For the aforesaid reasons, these appeals deserve to be allowed. We,
accordingly, set aside the judgment under challenge. The civil appeals are
allowed. There shall be no order as to costs.