1. ' The plaintiff filed this suit under the Banking Companies (Recovery of Loans) Ordinance, 1979 read with Order 34 and Order 37, C.P.C. For recovery of Rs,10,469,573.31. The plaintiff had granted credit facilities to the defendants. The advances made by the plaintiff were secured by demand promissory note and letters of guarantee as a collateral security for repayment of the credit and banking facilities to the extent of Rs,7,500,000 with interest thereon. Defendants Nos.3 and 6 created equitable mortgages in favour of the plaintiff of their respective immovable properties bearing plot and Building No,11/1 Survey No,RY-9 I.I. Chundrigar Road, Karachi and plot No,H-23, KDA Improvement Scheme No,3 Landhi Industrial Area Karachi together with buildings, factory and machinery, constructed and installed or to be constructed thereon. In the suit prayer was made for a decree against the defendants jointly and severally in the sum of Rs,10,609,931.31 with interest with a declaration that the mortgage properties are charged by way of mortgages with the decretal amount and preliminary decree for sale against the respective defendants Nos.3 and 6 under Order 34 Rule 4, C.P.C. A prayer for final decree was also made. Defendants Nos. 1, 3 and 6 filed an application for leave to appear and defend the suit. On 28-10-1987 defendants Nos. 2, 4 and 5 did not appear and after hearing the Advocates for the plaintiff and defendants Nos. 1, 3 and 6 it was decreed in the sum of Rs,91,51,075.42 and for the balance the defendant No,3 was granted leave to appear and defend the suit on the condition that the mortgaged properties shall be treated as security in the suit. Accordingly a decree was also prepared in the same terms. On 13-12-1987 when the matter came up for hearing Advocates for defendants Nos.1, 3 and 6 were present but defendants Nos.2, 4 and 5 were absent and as no application for leave to appear and defend the suit had been filed by them a decree in the sum of Rs,91,51,075.42 with interest at the rate of 14% per annum was passed against these defendants.
2. ' The plaintiff has filed this application praying that in the judgment, dated 28-10-1987 relief against the mortgaged properties be also granted. According to the learned counsel for the plaintiff it was an inadvertent omission in the judgment and for that the party should not be made to suffer. Mr. SA. Samad Khan the learned counsel for the defendants has objected to this application contending that there is no inadvertent mistake or omission and that relief is provided to the plaintiff by filing a fresh suit for sale of the mortgaged properties. A perusal of the plaint and the entire proceedings will show that the plaintiff had filed the suit as a Banking Company and had prayed for a decree under Order 34, C.P.C. Against the mortgaged properties therefore while passing judgment dated 28-10-1987 the plaintiff was entitled to get such relief which was not mentioned in the judgment at that time. The defendants' application under Order 37, Rule 3, C.P.C.
3. Was partly allowed and as they had admitted the liabilities to the extent of decretal amount the suit was partly decreed. It was a clear omission not to mention the relief to which the plaintiffs were entitled and had prayed for. Mr. Syed Iqbal Ahmad the learned counsel for the plaintiff has referred to Ram Singh v. Sant Singh and others AIR 1930 Lah. 210 where the trial Court had decreed the suit but inadvertently omitted to mention in the judgment that possession of the property be also given to the petitioner. When he applied for possession it was objected that as in the decree possession has not been awared it cannot be granted. The petitioner filed an application under section 152, C.P.C. For amendment of the judgment and it was observed: "The learned counsel says that if a relief is claimed in the plaint but has not been granted by the Court then it must be assumed that it has been refused. I do not think this argument applies to a case like the present where there is no express refusal but only an omission to grant the prayer and the omission not a deliberate one. I hold, therefore, that the application of the petitioner was competent under section 152, Civil Procedure Code and should have been granted by the Court below. In any case if it had been necessary for me to do so I would have revised the order passed on the application of the petitioner to be granted possession of the property which was adjudged to be his by the declaratory decree granted to him by the Court below in spite of the fact that an appeal was open to the petitioner against the order refusing possession, but he did not file one."
4. ' The learned counsel also referred to In re: Raj Raj Bahadur Singh v. Shatranjai AIR 1942 Oudh 226. It is also a case where application under section 152, C.P.C. Was made for amendment of the judgment and decree. In a well-considered judgment it was observed as follows: "We are of opinion that it was only by an oversight that the latter portion of the order was not ordered to be deleted. It was held in (10) 13 O.C. 114: 61 C. 979, Ashik Husain v. Mandi Hasan that the test is whether the order as it stands represents the intention of the Judge at the time he made it and if it does then a mistake in it cannot be treated as an accidental slip or omission which may be corrected under section 152. In this case we are of opinion that the intention of the learned Judges was not to make any decision as regards the plaintiff's right to ten villages and it was only by an accidential slip that they omitted to order the deleting of the second portion of the order. Section 152 corresponds to 0.28, R.11 of the Rules of the Supreme Court of Ireland. It was held in 1892 A.C. 547: 62 L.J.P.C.24: IR 1 67 L.T. 722, Henry William Hatton v. Hugh Harris on an interpretation of those rules that the Court has jurisdiction to correct the errors arising out of an accidental slip or omission. It was held in AIR 1924 Cal. 895: 80 I.C. 55: 28 C.W. No,873, Chandra Kumar v. Sudhansu Badani Debi that the word 'may' in section 152 does not make it discretionary with the Court to order the correction but merely enlarges the power of the Court by providing that such correction can be done at any time or in other words the section simply emphasises that no lapse of time would disentitle the Court to make the correction. It is also observed in this case that the intention of the law is to make it obligatory on the Court whenever such a mistake is discovered to correct it and section 152 merely emphasises the duty of the Court by saying that it may be done at any time witliout limitation."
5. These observations clearly lay down the principles involved in section 152, C.P.C. Where the Court has not passed any order unintentionally but due to oversight or omission, although in the facts and circumstances of the case the party was entitled to such relief, the Court is empowered to correct that mistake so that no party should suffer due to unintentional omission of the Court. In this suit plaintiff was entitled to a decree under Order 34, C.P.C. In the normal course. The omission to grant this relief was not intentional. The contention of Mr.S.A. Samad Khan that the plaintiff should file a separate suit for the sale of the mortgaged properties clearly demonstrates the inconvenience and hardships which shall be caused to a party in such circumstances. I, therefore, allow the application, amend the judgment that the plaintiff would be entitled to preliminary decree under Order 34, C.P.C. In respect of the mortgaged properties. The decree should also accordingly be amended.