9911796707
TMI Blog1981 (12) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... o argue the appeal. An illness slip was filed on behalf of Shri Kundan Singh, but it was not accepted under the impression that the memo of appearance did not bear the signatures of Shri Kundan Singh, Advocate and he was not the counsel for the appellants. This impression was caused on account of the order dated 10-8-1981 passed by Hon'ble Mohd. Hamid Husain J. on the order sheet. On 10-8-1981, the appeal had come up before him for hearing and no one had appeared on behalf of the appellants to argue the appeal. Then he noticed that the memo of appearance did not bear the signature of Shri Kundan Singh. Since the appellants were awarded a sentence of R. I. for seven years by the trial Court, he considered it desirable, in the interest of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11-1981 and surely adjourned the hearing of the appeal for the day. His absence on 6-11-1981 was not deliberate and in the interest of justice, the order and judgment dated 6-11-81 should be recalled and he should be afforded an opportunity to argue the appeal. 4. The learned A. G. A. has not filed a reply and has not opposed the application. 5. The facts pointed out by Shri Kundan Singh are now borne out. The office has now placed on record a memo of appearance dated 14-12-1977 bearing the signatures of Shri Kundan Singh, It has also reported that Shri Kundan Singh Advocate had filed his retainer on 2-9-1981 but the same is misplaced somewhere and is being searched. Had these memos come to my notice on fi-11-1981, in all probability, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which corresponds to Section 362 of the Code .and also referred to Section 362 of the Code and held: (Para 11). Hence an alteration or review by a High Court would be permissible as in this case of other courts, where provision therefore is made in this Code or by any other law for the time being in force. Their Lordships further held Giving the plain meaning to Section 369, it is clear that no court, subject to exceptions made in this section, shall alter or review its judgment. 8. The Code contains provisions relating to some specific orders which may be set aside by the Court passing them, if certain grounds are made out. Section 126(2) of the Code is such an instance. It empowers the magistrate to set aside an ex parte order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same Court. 10. Section 482 of the Code which preserves the inherent powers of High Court, too cannot be invoked for altering or reviewing a judgment when the prohibition contained in Section 362 of the Code is applicable. This aspect was considered by the Supreme Court in State of Orissa v. Ram Chander (supra) and their Lordships observed. {Paras 16, 17) :- Thus, inherent power cannot relate to any of the matters specifically dealt with by the Code. It would follow that inherent powers cannot be invoked to exercise powers which would be inconsistent with any of the specific provisions of the Code. The saving of inherent power is only for giving effect to orders passed under the Code, to prevent abuse of the process of any Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 14. No doubt the facts in the aforementioned two Supreme Court decisions were different. In neither of them the counsel for the appellant had failed to appear on account of want of notice or some other cause. However, the interpretation put by the Supreme Court on Sec. 362 and 482 of the Code in the aforesaid decisions, cannot be distinguished or ignored on this ground ..... X X X X Extracts X X X X X X X X Extracts X X X X
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