P L D 1960 Dacca 743 (PLP)

R. K. Bhattacharyya for Opposite‑Party No.

1. This rule is directed against the order of the Munsif, 1st Court, Dacca, refusing to incorporate in the final decree the costs awarded to the petitioner in the preliminary decree of that suit.

2. The preliminary decree in the Partition Suit was passed on 9th October 1950, with costs. The final decree was passed on 10th July 1951. The petitioner started Title Execution Case No. 79 of 1953 on 30th December 1953, for execution of the decree for costs awarded in the final decree along with the costs awarded in the preliminary decree. But at the time the Title Execution Case was started, the execution of the preliminary decree was time‑barred. So the opposite party raised an objec tion, and upon that Miscellaneous Case No. 8 of 1954 was started. This objection was allowed on contest on 10th April 1954, and the execution of the preliminary decree for costs was disallowed, but the execution of the final decree so far as it relates to the costs in the final decree proceeded on, and it was subsequently dismissed for default. As to the order disallowing the execution of the decree for costs in the preliminary decree, an appeal was taken by the petitioner, being Miscellaneous Appeal No. 109 of 1954, but it was dismissed on 22nd July 1954. In the meantime, in order to overcome the obstacle, the petitioner filed an application on 8th May 1954, under section 152 of the Code for correction of the final decree by incorporating the costs decreed in the preliminary decree. Question arose whether this application was maintainable or not.

3. The trial Court dismissed the application holding that such a right for correction of the final decree by incorporating the costs awarded in the preliminary decree existed prior to the making of the final decree, and it cannot be allowed after the final decree is passed, and after dismissal of the Title Execution Case started by the petitioner upto the Appellate Court. Hence, this Rule by the petitioner.

4. It is contended by Mr. Bose, the learned Advocate for the petitioner, that the application for correct on of the decree under section 152 can be made at any time, and the decree may be corrected by the Court either on its own motion or on the application made by any of the parties, and such an application can be made even after the execution of the decree for costs in the preliminary decree is barred by limitation, and in support of this contention, he relies on the case of Shaikh Salahuddin Ahmad and others v. Imamuddin and others (A I R 1938 Pat. 188), where it has been held as follows: "Where, therefore, the Court passes 4 preliminary decree for partition, and along with it also passes a decree for costs to be paid by the judgment‑debtor to the decree‑holder, the order for costs being a separately executable order, execution of it must be taken within three years of the date of the order. It is, however, open to the decree‑holder, plaintiff to ask the Court to incorporate the previous order for costs in the final decree, although execution of such order independently is barred by limitation." In the case of Chandra v. Sudhangshu (35 C W N 873); it has been held that the word "may" in section 152` does not give a discretion and the intention to make it obligatory on the Court to amend when a mistake is brought to its notice. In the case of Hamenta Kumar Ghose and others v. Rajendra Mondal and others (39 C W N 1295), Nasim Ali and Henderson, JJ., held that a decree can be amended at any time; but in the case of Mukherjee v. Ainuddin (36 C W N 97), amendment was refused on the ground of delay. In Allahabad it has been held that the power is entirely discretionary, and is to be exercised in view of the peculiar facts of each case, and no party can claim correction of clerical or arithmetical error as a matter of right, vide Kishori v. Chhangha (I L R 47 All. 44 (49)), Pitam v. Balwant (A I R 1925 All. 556).

5. In this particular case, it appears that the decree‑holder petitioner has not filed an application for correction of the final decree nor has he put the preliminary decree for costs into execution in time. At the time of execution of the final decree for costs, the petitioner tried to include this amount in his petition for execution as costs decreed to him in the prelimi nary decree. Being baffled in his attempt to execute the decree, he has now come to file an application for correction of the decree under section 152 by incorporating in the final decree the amount of costs decreed to him in the preliminary decree. Under the civil rule, unpaid costs is to be included in the final decree. It is an omission on the part of a ministerial officer of the Court, and consequently it can tie said that it is a mistake of the Court, and the Court can correct its own mistake at any time suo moto at its own initiative or on the application of the party concerned. If that is the position, I do not understand why the decree should not be amended by incorporation in the final decree the amount of costs decreed to the petitioner in the prelimi nary decree.

6. It is contended by Mr. Bhattacharyya for the opposite parties that there laches on the part of the decree‑holder, and he has not filed the application at the proper time.' Instead, he tried to execute the decree for costs as part and parcel of the costs in execution of the final decree. That may be so, but there is a corresponding duty on the Court to correct its own mistake. There may be circumstances where the Court may refuse in exercise discretion but, in the present case, I do not find such a strong circumstance to refuse the correction of the final decree. It is not correct to say that after the passing of the final decree the right of correction by incorporating the costs decreed in the preliminary decree ceased to exist and the right existed prior to the making of the final decree.

7. In the above view of the matter, this Rule is made absolute, and the petitioner's application for correction of the decree is allowed, but the petitioner must pay the costs of the opposite party in this Rule as well as those in the Courts below. K. B. A. Rule made absolute.