ORDER
S. Padmanabhan, J.
1. The suit is for money due under a chitty security bond. Defendant contested the suit by filing written statement But before settlement of issues he withdrew all his contentions and admitted the plaint” claim. The court passed a preliminary decree for sale under Order 34 Rule 4 of the Civil P.C in the following terms. (1) There will be a preliminary decree for sale in case the entire amount is not paid within six months. (2) If the entire amount is paid within six months and the defendant applies for full satisfaction of the decree within the said period without necessitating further investigation in a final decree proceedings plaintiff will be entitled to refund of one half court fee. In such a contingency costs will not include one half court-fee which will be refunded to plaintiff. Otherwise there will be no refund and plaintiff will get full costs. (3) Plaintiff will be at liberty to apply for a final decree for sale in case defendant fails to pay the amount within six months. In that event there will be no refund of court fee. Application for refund could be made only if the decree is satisfied within six months. Decree was drafted in terms of the judgment.
2. Amount was not paid within six months. Defendant filed an application under Sections 151 and 152 of the Code for correcting the decree and judgment. Except allowing correction of certain clerical or arithmetical mistakes in the decree the petition was dismissed. Defendant seeks to revise that order.
3. It is really unfortunate that such a decree was passed especially by a Subordinate Judge who is a senior judicial officer. There is no dispute regarding the fact (the learned Subordinate Judge had also no dispute) that the decree is on admission alone and not on the basis of any investigation. What Section 69 of the Court-fees Act says is that when a suit or appeal is compromised or when suit is decreed solely on the admission of the parties without any investigation, one half of the Court fee paid on the plaint or memorandum of appeal shall be ordered by the court to be refunded to the parties by whom the same have been paid respectively. The provision is mandatory and it does not depend upon the discretion of the court. When a suit is decreed solely on admission of the defendant without any investigation it is the right of the plaintiff to get refund of one half of the court fee and it is the duty of the court to grant the same, What is required is only that the suit must be decided solely on admission without any investigation. That condition is satisfied ‘when the preliminary decree for sale is passed solely on admission. Refund has to be ordered then and there. It cannot be conditional on the defendant depositing the amount directed in the preliminary decree. The necessity for the plaintiff to apply for a final decree on account of the default of the defendant to deposit the amount has nothing to do with ordering refund of court fee. All the rights are determined by the preliminary decree and there is no question of investigation in the final decree. What remains is only enforcement of the preliminary decree by sale. Though the proceedings in final decree is also continuation of the trial of the suit, it is an independent proceeding starting on a fresh application. That proceeding has nothing to do with refund of court fee. Only a decision of the suit by passing the preliminary decree on admission is sufficient to order refund and in such a situation the court has no other got but to order refund. Payment of the decree amount by the defendant has nothing to do with the refund of the court fee.
4. Had only the Subordinate Judge taken pains to read Section 69 of the Court-fees Act which gave her the power and duty to order refund, this mistake would not have been committed The counsel at least could have assisted the court in bringing the simple position of law to its notice. That is a matter affecting not only the plaintiff but the defendant also. When refund is refused and full cost is ordered plaintiff may not be a loser. Practically the loser is the defendant. His liability for costs doubles for no fault of his. Even though cost is discretionary the discretion will have to be exercised judicially and not arbitrarily to the detriment of parties. In a suit which is decided without contest award of full cost is definitely an erroneous exercise of jurisdiction. The Subordinate Judge ought to have refunded one half court fee and made the defendant liable only for one half cost. When the suit is decided on compromise or. admission alone normally exercise of discretion in awarding anything more than what is actually due as costs in that situation will not arise.
5. But that is no reason why an application filed under Section 151 or 152 should be allowed. A court having jurisdiction over the subject-matter can decide rightly or wrongly. Even a wrong or erroneous decree passed with jurisdiction is binding on the parties just tike a correct decree unless it is rectified by appeal or other remedies available according to law. Section 151 of the code can have application only when no other remedy is available according to the existing provisions of law. In exercise of the inherent powers court cannot override general principles of law. It could only be for securing the ends of justice or preventing abuse of the process of court. ‘Actus curiae neminem gravabit’ act of court shall not prejudice any body. In order to prevent such prejudice court can always exercise inherent powers. But when the prejudice is as a result of something done by court consciously in exercise of judicial discretion and other remedies are open to the party, there is no question of invoking inherent powers. Section 151 cannot be invoked as a substitute for appeal, revision or review. A party who slept over his rights and allowed a wrong decree to become final by not filing an appeal, revision or review cannot approach the court under Section 151 to rectify the wrong on the ground that the case is hard. A hard case cannot make bad law. On equitable matters sometimes an appeal to the heart may be justified. But in legal matters considerations should always come from the head and not from the heart. The learned Subordinate Judge was therefore correct in disallowing the prayer under Section 151.
6. Matters coming under Section 152 are clerical or arithmetical mistakes or errors arising therein from any accidental slip or omission. They could be corrected at any time by the Court suo motu or on application. As held in 1986 Ker LT 897 this provision is based on two principles namely that the act of the Court should not prejudice any party and Courts have the duty to see that their records are true and represent the correct state of affairs. The learned counsel for the revision petitioner brought my attention to the decision in Puttoo Lal v. Sahu, AIR 1938 Oudh 7. In that case award of full pleader’s fee in a decree even against an admitting defendant was held to be an error arising from an accidental slip which could be corrected under Section 152. But the finding in that case was that it was obviously an error arising from an accidental slip. But here a reading of the judgment shows that Court considered the legal provision on the merits and came to wrong conclusion consciously, probably thinking it to be correct. It is evidently not an error arising from any accidental slip or omission but a mistake consciously committed. The question of refund of Court fee was considered on the merits and the definite finding is that refund will be allowed only in a particular contingency and not otherwise. It is true that in dealing with the rights of parties, Courts will have to be a little more alert to the legal and factual problems so that injustice and inequities may not occur. But when injustice and inequities consciously occur, it may not be proper to stretch the arms of law to bring them under errors arising from accidental slip or omission.
7. An arithmetical mistake is a mistake in calculation while a clerical mistake is of writing or typing. Error from an accidental slip or omission is an error due to careless mistake or omission made unintentionally and perhaps unknowingly also. Such mistake should be apparent on the face of the record also. When the Judge carelessly and unintentionally said something in the judgment or order which he did not mean to say or omitted something which he meant it could be said to be an error arising out of accidental slip or omission. A matter requiring elaborate arguments or evidence on questions of fact or law for its discovery cannot be categorised as errors arising out of accidental slip or omission in order to bring it within the scope of Section 152. It is a condition precedent to the applicability of Section 152 that the errors must arise from accidental slip or omission which means they should not be intentional or conscious.
When the Court, as in this case, considered the case on all aspects and consciously passed a wrong decree with jurisdiction the only remedy open to the defendant was to file an appeal. The order of the Court below does not call for interference in revision. Revision is therefore dismissed without costs.