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Inherent power of the courts in Civil Law

Inherent power of the courts

According to section 151 of the code nothing in the Code of Civil Procedure shall be deemed to limit or otherwise affect the inherent power of the code to make such an order as may be necessary for the end of the justice or to prevent abuse of the process of the court.

Section 151 furnishes legislative recognition to a well-established principle that every court has inherent power over its own records in order to do real and substantial justice section 151 casts a duty on judge to apply all such inherent power not only to what appears to be the regulated by the express provision of law, but to all cases to which adjust application of them may be made and which appears to be comprehended either within the expense express sense of the law or within the consequences that may be gathered from it.

It is well settled that there is an inherent power in the court to pass the judgement to correct clerical mistake or an error arising from an accidental slip or omissions on a vary judgement so as to give effect to its meaning and intention.

Courts are not to act upon the principle that every procedure is to be taken as prohibited, unless it is expressly provided for by the code of Civil Procedure, put on the converse principle that every procedure is to be understood as permissible till its shown to be prohibited by law.

"Every Court", said Bowen, L.J. Mellor v. Swire. (1885)

"Has inherent power over its own records so long as these records are within its power and that is that it can set and write any mistake in them. An order even when passed and entered may be amended by the court so as to carry out its intention and express the meaning of the court when the order was made".

Under section 152 of the code, clerical or arithmetical mistakes and judgments, decrees and orders arising therein form from an accidental slip or omission may at any time be corrected by the court either or its own motion or on the application of any of the parties.

It is thus manifest that error arising from an accidental slip can be corrected subsequently not only in a decree drawn by a ministerial officer of the court, but even in the judgement pronounced and signed by the court.

The court has inherent power to an act according to justice, equity and good conscience but can't override the express provision of all, nor can it do that is prohibited by law example adding to or altering judgement after it has been signed in contravention of Order 2, Rule 3, to entertain a suit relating caste questions against section 9 to ignore the law of limitation. (AIR 1934 Mad. 199)

The inherent power of the code must be exercised only where the specific provisions contained in the code are sufficient to meet the requirement of the case. In case a remedy is available by way of a separate suit, the court should not interfere under Section 151 of the court, for example amending a consent decree on the ground of fraud (ILR 62 Cal 61).

The inherent power of the court under section 151 of the court is not meant to be exercised for doing justice after rectifying the mistake of the parties which are not fit to be rectified in law. Law can't be in different form for suits and cases involving substantial claims from that which is applicable to the case of the small claim. (AIR 974 Patna 237).

When an application under Order 21, Rule 90 (application to set aside sale on ground of irregularity or fraud) is dismissed on the ground of default it is open to the applicant to move the code which has passed the order for the dismissal under section 151 of the code to have the order for dismissal set aside. (AIR 1975 Cal. 80 FD).

Written By: Robinsh Kumar Singh, Advocate - Cyber Law Consultant

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