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PETITIONER: SMT. SOORAJ DEVI

       Vs.

RESPONDENT: PYARE LAL AND ANR.

DATE OF JUDGMENT08/01/1981

BENCH: PATHAK, R.S. BENCH: PATHAK, R.S. SARKARIA, RANJIT SINGH

CITATION:  1981 AIR  736            1981 SCR  (2) 485  1981 SCC  (1) 500        1981 SCALE  (1)46  CITATOR INFO :  R          1990 SC1605  (6)

ACT:      Code of Criminal Procedure, 1973, S. 362-Scope of.      Whether the  High Court  can alter  or review  its  own judgment in exercise of inherent powers under s. 482.      Words and  Phrases-’otherwise provided  by this Code or by any  other law  for the time being in force’-’Clerical or arithmetical error’-Meaning of.

HEADNOTE:      Section 362  of the  Code of  Criminal Procedure, 1973, mandates a  court not  to alter  its judgment.  It  declares that: "save  as otherwise  provided by  this Code  or by any other law for the time being in force, no Court, when it has signed its  judgment or  final order  disposing of  a  case, shall alter  or review the same except to correct a clerical or arithmetical error."      The  house   property  owned  by  the  husband  of  the appellant was  sold in  a court  auction sale  and the first respondent purchased  the property  and obtained  possession through the  Civil  Court  Amin.  In  his  absence,  it  was alleged, that  the second  respondent (son of the appellant) had removed  the lock and entered into possession. The first respondent, instituted  a criminal  proceeding  against  the second respondent,  and  he  was  ultimately  convicted  and sentenced by  the High Court under section 448 of the Indian Penal Code,  with the  further  direction  that  ’the  house property  be   restored  to  the  possession  of  the  first respondent’. Pursuant  to that  order the  first  respondent applied for possession, but the appellant objected asserting her right  to the  property. The  Magistrate  overruled  the objection and  observed that it was open to the appellant to establish her  right by  way of a civil suit. This order was upheld by the High Court.      The appellant thereafter filed a Criminal Miscellaneous Application before  the High  Court under section 482 of the Code of Criminal Procedure, 1973 alleging that she was not a party  to   the  criminal   proceedings  against  the  first respondent and  that she  was in possession in her own right and that the earlier order of the High Court in the criminal proceedings directing restoration of possession to the first

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respondent be  clarified by  a declaration  that it  was not binding on  her and  did not affect her possession. The High Court dismissed this application.      Dismissing the appellant’s appeal ^      HELD :  1. The  High Court  was right  in declining  to entertain the application. [489 C]      2. "A  clerical or  arithmetical  error"  is  an  error occasioned by  an accidental  slip or omission of the Court. It represents that which the court never 486 intended to  say. It is an error apparent on the face of the record and  does not depend for its discovery on argument or disputation.  An   arithmetical  error   is  a   mistake  of calculation, and a clerical error is a mistake in writing or typing. [488 G]      Master Construction Co. (P) Ltd. v. State of Orissa and Another, [1966] 3 S.C.R. 99 referred to.      In the  instant case  what the  appellant sought by the application,  was  not  the  correction  of  a  clerical  or arithmetical error,  but a  declaration that  the High Court order in  the criminal  proceedings did not affect her right in the  house property  and that  the direction  to  restore possession to  the first  respondent was  confined  to  that portion only  of the  house property  respecting  which  the offence of  trespass was  committed  so  that  she  was  not evicted from the portion in her possession. This controversy cannot  be  brought  within  the  description  "clerical  or arithmetical error". [488 D-F]      3. The inherent power of the Court under section 482 of the  Code  is  not  contemplated  by  the  saving  provision contained in  section 362  and, therefore,  the  attempt  to invoke that power by the appellant can be of no avail.                                                  [488H-489A]      4. The  inherent power of the Court cannot be exercised for doing that which is specifically prohibited by the Code. [489-B]      Sankatha Singh  v. State  of U.P.  A.I.R. 1962  SC 1208 referred to.      5. The  prohibition in  section 362  against the  Court altering or  reviewing its  judgment is  subject to  what is "otherwise provided by this Code or by any other law for the time being  in force."  These  words  refer  only  to  those provisions where  the Court has been expressly authorised by the Code or other law to alter or review its judgment. [489- B]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION :  Criminal Appeal No. 471 of 1979.      From the  Judgment and  Order  dated  5-1-1979  of  the Allahabad High Court in Criminal Case No. 5127 of 1978.      Kameshwar Prasad and Pramod Swarup for the Appellant.      S. K. Jain for the Respondent.      The Judgment of the Court was delivered by      PATHAK, J  : This  appeal by  special leave is directed against an  order of  the Allahabad High Court dismissing an application for  "clarification" of an earlier order made by the court in a criminal proceeding.      The dispute  in  this  appeal  relates  to  a  property described as  house No.  24/47, Birhana Road, Kanpur. A suit filed by  the South  India Trading  Company against  Jethmal Laxmichand was  decreed and execution proceedings were taken

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for the attachment and sale of the 487 aforesaid house  property. The  house was  owned by one Khem Raj, who  died  leaving  a  widow,  Smt.  Sooraj  Devi  (the appellant) and  a son,  Kailash  Chandra  Jain  (the  second respondent). The  property was  purchased by  Pyare Lal (the first respondent). Pyare Lal obtained possession through the Civil Court  Amin on  8th October,  1965, but in his absence Kailash Chandra  Jain is  said to  have removed the lock and entered into  possession. In  a criminal  proceeding against him on a complaint by Pyare Lal, he was ultimately convicted and sentenced  by the  High Court under s. 448, Indian Penal Code by  an order  dated Ist September 1970, under which the High Court  also directed  "that house  No.  24/47,  Birhana Road,  Kanpur   be  restored   to  the   possession  of  the complainant". Pursuant  to that order, Pyare Lal applied for possession. The  appellant filed  an objection,  asserting a right  to   the  property.   The  Magistrate  overruled  her objection, observing  that it  was open  to her to establish her right by way of suit. The rejection of her objection was upheld by the High Court by its order dated 21st July, 1978. The appellant  then filed Criminal Miscellaneous Application No. 5127  of 1978  before the High Court under s. 482 of the Code of Criminal Procedure alleging that she was not a party to the  criminal proceeding  against Kailash  Chandra  Jain, that she  was in  possession in  her own right, and that the earlier order  of the  High Court  dated Ist September, 1970 directing  restoration   of  possession   to  Pyare  Lal  be clarified by  a declaration  that it  was not binding on her and did not affect her possession. On 5th January, 1979, the High Court dismissed the application in view of the decision of this  Court in  State of  Orissa v.  Ram Chander Agarwala etc. The order has led to this appeal.      Before passing  on the  merits of  this appeal,  we may observe that  the house property has been, and still is, the subject of  civil litigation.  Civil Suit No. 73 of 1963 was filed by  Kailash Chandra  Jain and  his minor sons alleging that they were entitled to the house property and the decree obtained by  the South India Trading Company was not binding on them  and could  not be  executed against  them.  As  the property was  meanwhile sold and the sale confirmed the suit was regarded as infructuous and the plaint was allowed to be rejected for  want of  court fee. Instead, Civil Suit No. 53 of 1964  was filed by the minor sons of Kailash Chandra Jain claiming that  they were  joint owners of the property, that the sale  conferred no right, title or interest in Pyare Lal and that they were entitled to an injunction. The appellant, who had  originally been  impleaded as  a defendant  in  the suit, was  transposed to  the array  of plaintiffs. The suit was dismissed  in default,  but subsequently restoration was allowed by the 488 Trial Court on payment of costs, and the time for payment of costs was  extended by  the High  Court. A third suit, Civil Suit No.  18  of  1977,  was  filed  by  the  appellant  for partition.  An   application  for   interim  injunction  for preserving the  appellant’s possession in the house property has been dismissed by the trial court.      The sole  question before  us is whether the High Court was right  in refusing  to entertain  Criminal Miscellaneous Application No.  5127 of  1978 on  the ground that it had no power to review its order dated Ist September, 1970. Section 362 of the Code of Criminal Procedure declares :           "Save as otherwise provided by this Code or by any      other law  for the  time being in force, no Court, when

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    it has  signed its judgment or final order disposing of      a case,  shall alter  or  review  the  same  except  to      correct a clerical or arithmetical error".      It is  apparent that  what the  appellant seeks  by the application  is   not  the   correction  of  a  clerical  or arithmetical error.  What she  desires is a declaration that the High  Court order  dated Ist  September, 1970  does  not affect her  rights  in  the  house  property  and  that  the direction to  restore possession to Pyare Lal is confined to that portion only of the house property respecting which the offence of trespass was committed so that she is not evicted from the  portion in her possession. The appellant, in fact, asks for  an  adjudication  that  the  right  to  possession alleged by  her remains  unaffected by  the order  dated Ist September, 1970.  Pyare Lal  disputes that  the order is not binding on  her and that she is entitled to the right in the property claimed  by her.  Having considered  the matter, we are not satisfied that the controversy can be brought within the description "clerical or arithmetical error". A clerical or  arithmetical   error  is   an  error  occasioned  by  an accidental slip or omission of the court. It represents that which the  court never  intended to  say.  It  is  an  error apparent on  the face  of the record and does not depend for its discovery  on argument  or disputation.  An arithmetical error is a mistake of calculation, and a clerical error is a mistake in  writing or  typing. Master  Construction Co. (P) Ltd. v. State of Orissa and Another.      The appellant  points out  that he invoked the inherent power of the High Court saved by s. 482 of the Code and that notwithstanding the  prohibition imposed  by s. 362 the High Court had power to grant relief. Now it is well settled that the inherent power of the 489 court  cannot   be  exercised   for  doing   that  which  is specifically prohibited by the Code. Sankatha Singh v. State of U.P.  It is  true that  the prohibition in s. 362 against the Court  altering or  reviewing its judgment is subject to what is "otherwise provided by this Code or by any other law for the time being in force". Those words, however, refer to those provisions  only where  the Court  has been  expressly authorised by  the Code  or other law to alter or review its judgment.  The   inherent  power   of  the   Court  is   not contemplated by  the saving  provision contained  in section 362 and,  therefore, the attempt to invoke that power can be of no avail.      The High  Court, in  our opinion, is right in declining to entertain  the application. The appeal must be dismissed. But we  may observe  that anything said by the High Court in the criminal  proceeding against Kailash Chandra Jain should not be allowed to influence the judgment of the court in the civil suits  mentioned above  or in  any proceeding  arising therefrom.      The appeal is dismissed. N.V.K.                                     Appeal dismissed. 490