1987 PLP 1169 (CLC)

I may clarify here that in the above orders I used the word "interest" and "profit" interchangeably,.

4. On 2nd June, 1984, the appeal was dismissed in default in the presence of learned counsel for the petitioner (respondent in the appeal). On the same day, the respondents made a petition (C.M. No. 2814‑C of 1984) for restoration of the appeal but that too was dismissed by me on 20th June, 1984, on merits.

5. Thereafter, on 10th July, 1984 the petitioner submitted C. M. No. 3417‑C of 1984 praying that "the Postmaster Savings. General Post Office, Lahore, may be directed to pay a sum of Rs. 11,97,215 alongwith the profit accrued thereon till date of actual payment" to the petitioner. This petition was withdrawn by the petitioner on 11th July, 1984 stating that it "would first like to approach the authorities concerned to get the amount due to the petitioner". The petitioner then took out execution proceedings. In view of my order, dated the 14th March. 1981, the learned executing Court did not touch the amount of Rs.11,97,2.15 in respect of which that order had been passed. Another sum of Rs.11,97,215, lying in the account of the respondents was, however, ordered to be paid `to the petitioner and it was accordingly paid. No order was made by the learned executing Court in respect of the profit accruing on the sum withheld by me saying that an order in regard thereto could be passed by this Court only. It was then that the petition in hand was submitted. The prayer made herein reads as under:‑

"In view of the submissions made above, it is respectfully prayed that the Post Master Savings. General Post Office, Lahore, may very kindly be directed to pay to the applicant a sum of 3s.14,72,740 as per details shown in Annexure 'B' from out of the deposit of judgment‑debtors lying in Account No. KD‑5370 maintained with the Post Master Savings, General Post Office, Lahore. The future interest at the said rate from 1‑1.1‑1984 to the date of actual payment thereof may also be allowed from out of the said deposit. The costs of these proceedings may also be awarded".

6. Petition before me was filed under section 151 of the Code of Civil Procedure. Besides issuing notice of this petition to the respondents, I gave them suo motu notice of looking into the matter under sections 152 and 153 of, the said Code also. In this connection, I have heard learned counsel for the parties at great length.

7. It was contended by learned counsel for the respondents that with the dismissal of the appeal as well as the petition for restoration thereof, this Court has become functus officio and, therefore, it has no jurisdiction to entertain the present petition. They retied on Order XX, Rule 3, of the Code of Civil Procedure to support their argument. It was also their plea that the petitioner was negligent in the matter of obtaining order regarding payment of the sum withheld by this Court and the profit payable thereon and, therefore, it was not entitled to the relief sought by it. Additionally, it was submitted by learned counsel for the respondents that the petitioner could not be awarded the whole of the said profit especially due to the reason that the prayer made in the instant petition was for payment of interest at the rate of 7 per cent. per annum only.

8. Contention of learned counsel for the respondents that provisions of section 151 of the Code of Civil Procedure were not available to this Court for allowing desired relief to the petitioner was not seriously contested by learned counsel for the petitioner. It was however, urged by him that this Court has power to amend its judgment, dated the 20th June, 1984, in the appeal, under sections 152 and 153 of the said Code, so as to give direction regarding payment of the sum of Rs.11,97,215 withheld by it and the profit accrued thereon. It was stressed by him that the petitioner was not negligent in seeking the above relief. He abandoned prayer for payment of interest in addition to the profit in dispute. It was further stated by him that the petitioner would ask for profit only for the period from 14th March, 1981 (the date of order relating to withholding payment of the sum of Rs.11,97,215) till the date of the dismissal of the appeal. He also gave up all other prayers made in the present petition.

9. Provisions of Order XX, rule 3, of the Code of Civil Procedure, relied upon by learned counsel for the respondents for the proposition that judgment, dated the 2nd June, 1984, by which the appeal was dismissed in default, cannot be altered or added to, read as follows:‑ "

3. Judgment to be signed.‑‑The judgment shall be dated and signed by the Judge in open Court at the time of pronouncing it and, when once signed, shall not afterwards be altered or added to, save as provided by section 152 or on review". Since Order XX, rule 3, itself permits amendment of a judgment under section 152, I will first proceed to see if I can amend the said judgment of mine under section 152 so as to allow the relief sought by the petitioner.

10. Section 152 reads as under:‑ "

152. Amendment of judgments, decrees or orders.‑‑Clerical or arithmetical mistakes to judgments, decrees offers 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 t[ e parties".

11. What is lacking in my judgment is that it does not contain order for payment of the sum of Rs.11,97,215 withheld by me, vide order dated the 14th March, 1981, and the profit accrued thereon. I do not think that the said deficiency in my judgment can be termed as clerical or arithmetical mistake. I am, however very clear in my mind that it was due to accidental omission that no direction with regard to the said sum or profit was given by him while passing the above judgment. Question which arises here is whether the said flaw or deficiency in my judgment can be treated as an error for the purposes of section

152. The word 'error' has not been defined in the Code of Civil Procedure or in the General Clauses Act, 1897, which deals with interpretation of laws like the said Code. So, we have to go by dictionary meaning of the said word. According to the Shorter Oxford English Dictionary, Vol I, 3rd Edition, 1944, one of the meanings of error' is 'flaw'. Undoubtedly, there is a flaw in my judgment inasmuch as it does not contain direction for disposal of the sum of Rs.11, 97, 215 and the profit payable thereon. There is, thus, an error in my judgment. As noted above, this error occurred due to an accidental omission: I am, therefore, of the view that under section 152, I can make amendment in my judgment so as to give direction in respect of payment of the sum withheld by me and the profit due thereon. Similar amendments in the judgments were allowed in Sher Muhammad and others v. Khuda Bux and another P L D 1961 (W.P.) Lah. 579; Fazal Gul v. Mst. Farosha and 35 others P L D 1973 Pesh. 182, Puttoo Lal v. Sahu and others AIR 1938 Oudh 7 and Maharaj Puttu Lal v. Sripal Singh and others A I R 1937 Oudh 191.

12. Since it has been held just above that necessary amendment in my judgment can be made under section 152, I would not like to go into the question whether that amendment can be allowed under section 151 or 153 also.

13. This brings me to the respondents' plea that since the petitioner was negligent in securing from me an order relating to payment of the said sum and the profit, it is not now entitled to an order in this behalf. It is true that learned counsel for the petitioner was present when the appeal was dismissed by me and he did not then ask me to pass an order in the matter but it is also a fact that at that time it did not occur to me that such an order was called for. It was and inadvertent omission on my part. There is well‑known maxim of law that no party should suffer due to the act of Court. The petitioner should, therefore, not be punished for my shortcoming. As for delay in making the instant petition by the petitioner, it was explained by its learned counsel that since petition for restoration of the appeal was filed soon after its dismissal in default, the petitioner did not make the present petition immediately after the dismissal of the appeal. After the dismissal of petition for restoration of appeal, the petitioner filed C.M. No. 3417‑C of 1984 seeking payment of Rs. 11,97,215 and the profit payable thereon but withdrew it in the hope of getting the desired relief from the executing Court. The petitioner approached the learned executing Court and was able to recover the decretal sum under the orders of that Court. Learned executing Court, however, expressed its inability to pass any order in regard to the profit and, therefore, the petitioner came up with the instant petition. All this would demonstrate that the petitioner has not slept over the matter and has been taking steps to recover what was due to him. There is thus little force in the plea of negligence raised by learned counsel for the respondents.

14. There is yet another approach to the matter under consideration. As explained earlier, orders dated the 14th March, 1981 and 20th April, 1981, were made by me in consequence of C. M. No. 484‑C of 1981 filed by the respondents under Order KLI, Rule 5, read with section 151 of the Code of Civil Procedure. The said Rule 5 reads as under:‑

"

5. Stay by Appellate Court.‑‑(1) An appeal shall not operate as a staff proceedings under a decree or order appealed from except so far as Court may order, nor shall execution of a decree be stayed by reasonably of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree. Stay be Court which passed the decree.‑‑(2) Where an application is made for staff execution off' an appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be' stayed. (3) No order for stay of execution shall be made under sub‑rule (1) or sub‑rule (2) unless the Court making it is satisfied; (a) that substantial loss may result to the party applying for stay of execution unless the order is made; (b) that the application has been made without unreasonable delay; and (c) that security has been given by the applicant for the due performance of such, decree or order as :nay ultimately be binding upon him. (4) Notwithstanding anything contained in sub‑rule (3), the Court may make an ex parte order for stay of execution pending the hearing of the application." The sum of Rs.11,97,215 arid the profit accruing thereon were withheld by me so that they may serve as security for execution of decree passed against the respondents. It was not disputed by learned counsel for the respondents that if any sum is deposited by way of security, order regarding its disposal can be made even after the disposal of the matter in which the security is obtained. Looked from this angle also. I can pass order regarding payment of the sum withheld by me and the profit payable thereon, even after the dismissal of the appeal.

15. It may also be pointed out that if this Court declines to give direction with regard to disposal of the sum of Rs. 11.97,215 withheld by it and the profit due thereon, it will not only result in anomalous situation but would also be of no benefit to the respondent. According to orders, dated the 14th March, 1981 and the 20th April, 1981, the said sum and the profit cannot be paid to any of the parties without the orders of this Court. This means that if no order is passed in this behalf none of the parties will be able to withdraw the same. Further in all fairness, the sum of Rs.11,97,215 withheld by me should now be paid to the respondents because a sum equal thereto has been paid to the petitioner, from the respondents account, in execution of the decree. It will, therefore, be in the interest of both sides if an order for disposal of the sum and the profit withheld by me is passed by this Court.

16. Lastly, I have to deal with the respondents' argument that the petitioner cannot be allowed to have the whole of the profit in question because it simply claimed interest at the rate of 7 per cent. per annum in the instant petition. A careful perusal of the prayer of the petitioner, as reproduced above, would reveal that the petitioner asked for interest in addition to the profit payable on the sum withheld by me and not in lieu of such profit. Now, before me, learned counsel for the petitioner has given up prayer in regard to the interest. The sum of Rs. 11, 97, 215 was withheld by me by way of security. If the petitioner, which is a business concern, has been allowed to recover that sum after the passing of the decree, it might have earned much more than the profit which has accrued thereon due to its deposit in the Post Office Savings Account. I, therefore, see no cogent reason to refuse the whole of the profit to the petitioner.

17. It has already been mentioned that the decretal sum amounting to Rs.11,97,215 has been recovered by the petitioner through the executing Court, without making use of the sum of Rs.11, 97, 215 withheld by me. The sum, of Rs.11,97,215 withheld by me, is therefore, released for payment to he respondents. As regards the profit payable thereon the, whole of it, for the period intervening 14th March, 1981 (when the above amount was withheld) till 20th June, 1984 (when the appeal was dismissed), shall be paid to the petitioner. Judgment, dated the 22nd June, 1984, is amended, under section 152 of the Code of Civil Procedure, so as to add the above direction thereto. Since learned counsel for the petitioners has abandoned all other reliefs claimed in this petition, no order is made in respect thereof. The petition is disposed of accordingly with no order as to costs. H. B. T./P‑3/L????????????????????????????????????????????????????????????? Order accordingly.