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Namdeo Amrut Gohane Vs. Narayan Shamrao Deshmukh and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial;Civil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 171 of 1966
Judge
Reported inAIR1971Bom121; 1970MhLJ797
ActsCode of Civil Procedure (CPC), 1908 - Sections 2(2), 151 and 152 - Order 20, Rule 6; Transfer of Property Act - Sections 55 and 55(4)
AppellantNamdeo Amrut Gohane
RespondentNarayan Shamrao Deshmukh and anr.
Appellant AdvocateS.V. Padhye, Adv.
Respondent AdvocateG.G. Modak, Adv.
Excerpt:
.....test for deciding whether an amendment should be allowed or should riot be allowed is whether the decree represents the intention of the judge who made it. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be protected. the observations/directions issued by supreme court in para 36 of judgment in the case of state v millind reported in 2001 91) mah. lj sc..........an amendment of the decree by this application. the defendant opposed the amendment. the learned extra assistant judge after considering the matter allowed the application and ordered that the decree should be amended saying that the decretal amount shall be a charge on the field in suit. this order is now challenged by the original defendant. 4. the learned advocate for the applicant contends here that the learned extra assistant judge had no jurisdiction to pass an order amending the decree under section 152 of the civil p. c. especially when the plaintiffs in their appeal against dismissal of their suit before the district court did not ask for the charge on the property which was the subject-matter of the sale. according to him, this point was never raised in the appeal and the.....
Judgment:
ORDER

1. The defendant has filed this revision application being aggrieved by the judgment passed by the Extra Assistant Judge, Shri Wankhede, in a miscellaneous Civil Application, which was decided by him. He allowed that application of the plaintiffs ordering that the decree should be amended indicating that the decretal amount shall also be a charge on the suit field.

2. The plaintiffs had filed a suit in the year 1963 for recovery of a sum of Rs. 6136 and also for a charge on the suit field for this sum. Their complaint was that they had sold a field to the defendant on 29-10-1958 for Rs. 5500/-. A sum of Rs. 300/- was paid on that day as earnest money by the defendant. Under the agreement, the defendant was to pay the balance consideration by instalments. He was to pay the first instalment of a sum of Rs. 1300/- on 15-2-1960 and to go on paying Rs. 1300/- every year till the last instalment on 15-2-1963. Because he has not paid any instalment, the plaintiffs had filed this suit for the unpaid price of the field. The trial Court dismissed the plaintiffs' suit. Therefore, they went in appeal before the District Court, Nagpur.

3. The plaintiffs succeeded in appeal and the learned Assistant Judge (Mr. Wankhede) who decided also the appeal passed a decree in their favour. It, however, appears that there was an omission in the decree drawn regarding the charge on the field which was the subject-matter of the sale and on account of which the unpaid amount was not paid. The plaintiffs had, therefore, applied under Sections 151 and 152 of the Civil P. C. stating that they had filed a suit not only for the recovery of an unpaid price but also claimed a charge decree on the property. Their contention in the application was that the appellate Court had allowed the appeal and decreed the suit but the decree drawn up did not mention that the decretal amount would be a charge on the property in suit. According to them, this mistake in the decree drawn was accidental and therefore required to be corrected. Their complaint was that the defendant had no other property and it would be impossible to recover the sum unless it is charged on the property. They are entitled to a charge under Section 55 of the Transfer of Property Act. They, therefore, sought an amendment of the decree by this application. The defendant opposed the amendment. The learned Extra Assistant Judge after considering the matter allowed the application and ordered that the decree should be amended saying that the decretal amount shall be a charge on the field in suit. This order is now challenged by the original defendant.

4. The learned advocate for the applicant contends here that the learned Extra Assistant Judge had no jurisdiction to pass an order amending the decree under Section 152 of the Civil P. C. especially when the plaintiffs in their appeal against dismissal of their suit before the District Court did not ask for the charge on the property which was the subject-matter of the sale. According to him, this point was never raised in the appeal and the learned Extra Assistant Judge, therefore, in that appeal did not even give a finding. Therefore, he contends that the learned Extra Assistant Judge was in error when he passed the order that the decree should be amended. On the other hand, the learned advocate for the opponents here contends that the learned Extra Assistant Judge's order is quite legal and proper, because he set aside the decree passed by the trial Court dismissing his suit, that the learned Extra Assistant Judge allowed their appeal and that, therefore, it must be reasonably inferred that he allowed the reliefs that were asked for in the suit. The relief asked for in the suit was not only the recovery of the sum but also the charge on the property. The learned advocate for the opponents, therefore, says that the order of the learned Extra Assistant Judge amending the decree is quite legal and proper.

5. Now the application on which the learned Extra Assistant Judge has passed the order and which order is challenged here is not only under Section 151 but also under Section 152 of the Civil P. C. Under Section 151 nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of .justice, or to prevent abuse of the process of the court. Therefore, under this section the. Court, in a given case, and in the interests of justice, can pass an order even correcting the decree unless it is prohibited or excluded by the Code or other statutes. Under Section 152 any clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be' corrected by the Court either of its own motion or on the application of any of the parties. Therefore, where there has been a clerical or arithmetical mistake or an error arising from an accidental slip or omission, the Court can amend or vary a decree. We will, therefore, have to see whether the decree which was drawn up after the judgment of the learned Extra Assistant Judge allowing the appeal of the plaintiff was according to the adjudication in the judgment.

6. Admittedly, the plaintiffs have filed the suit not only for the recovery of the unpaid price but also claimed the unpaid vendor's charge. These are the reliefs which the plaintiffs asked for in the suit. The trial court dismissed this suit. The plaintiffs, therefore, filed an appeal against the dismissal of their suit. The learned Extra Assistant Judge allowed the appeal and set aside the decree of the trial Court. In the concluding part of the order, he ordered and decreed that the respondent before him (i.e. the defendant) do pay a sum of Rs. 5668/- to the appellant and that the decretal amount shall carry interest at the rate of 4 per cent per annum from the date of the suit until the date of realisation; that the respondent shall pay the costs of the' claim decreed to the appellants in that appeal and in the Lower Court and shall also bear his own costs throughout. Further, the appellants were ordered to pay the costs of the respondent on the claim dismissed in that appeal and the lower court and to bear their own costs throughout. There were some other incidental observations. The learned Extra Assistant Judge appears to have omitted to mention regarding the claim of the appellants (plaintiffs) in so far as they wanted a charge on the property. It is because of this omission that the decree appeared to have been drawn according to the observations of the learned Extra Assistant Judge in the concluding part of his judgment. The point, therefore, that arises here is to see whether the decree as drawn reflects the intention of the learned Extra Assistant Judge and the adjudication in the appellate judgment passed by him. The learned Extra Assistant Judge has observed during the course of his order allowing the amendment, which is challenged here, that he observed in para 13 of the judgment in appeal that under Section 55(4)(b) of the Transfer of Property Act the seller was entitled to the amount of purchase money or any part thereof which remained unpaid and for interest on such amount or part from the date on which possession has been delivered. He also observed in the appellate judgment that the appellants (opponents here) were entitled to recover a sum of Rs. 5200/- as well as the interest. The learned Extra Assistant Judge in this order mentions that under Section 55(4) of the Transfer of Property Act the seller is always entitled to a charge on the field which is sold to the buyer. After mentioning certain parts of the appellate judgment, the learned Extra Assistant Judge came to the conclusion that his intention according to the appellate judgment was to pass a decree according to the claim of the plaintiffs as regards the charge.

7. Now under Section 2(2) of the Civil P. C. 'decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. I mentioned only the relevant portion of the same. Therefore, a decree is merely a formal expression of an adjudication. In other words, the decree though formal must reflect all the adjudication by the Court. Under Order 20, Rule 6, of the Civil P. C., the decree shall agree with the judgment; it shall contain the number of the suit, the names and description of the parties, and particulars of the claim, and shall specify clearly the reliefs granted or other determination of the suit. Therefore, the decree should be drawn up in such a way as to make it self contained and as to make it a reflection of all the important reliefs given by the judgment. In so far as the facts of our case are concerned, the plaintiffs, admittedly, asked for a charge on the field in suit. Their suit was dismissed and, therefore, they filed an appeal to the District Court. The learned Extra Assistant Judge allowed the appeal after setting aside the dismissal of the suit. During the course of the judgment, he also observed regarding the relief of charge which the plaintiffs claimed. When therefore he allowed the appeal, it means that he not only allowed the claim of the appellants to recover the sum but also allowed their claim in so far as they wanted a charge on the property. By this appellate judgment, therefore, the learned Extra Assistant Judge granted the relief sought by the plaintiffs. But it appears that it was omitted in the decree drawn. The point, therefore, that arises here for consideration is whether the learned Extra Assistant Judge under Section 152 of the Civil P. C. could allow such amendment. In my view, such an amendment could be allowed under Section 152 also. As this decree did not conform to the judgment intended to be enforced by it, that decree could certainly be amended to bring it in conformity with the intention that was expressed in the judgment. In exercising the power of amendment the Court does, under Section 152 of the Civil Procedure Code, not more than what would have been done by it or by the officer concerned of the Court or the officer performing his original duty of seeing that the decree is in conformity with the intention expressed in the judgment. The amendment, of course, will not be allowed if it is not in furtherance of the judgment. As the object of an amendment is to harmonise the decree with the judgment sought to be enforced by it, the test for deciding whether an amendment should be allowed or should not be al-lowed is whether the decree represents the intention of the Judge who made it. It appears to me therefore that in the furtherance of justice it was very necessary for the learned Assistant Judge to allow the application of the plaintiff for amending the decree as was sought for.

8. Even otherwise under Section 151 of the Civil Procedure Code, the appellate Judge could allow that application for amending the decree if in the interests of justice he has to make the decree in conformity with the judgment. He has no other alternative but to exercise even if necessary his powers under Section 151 of the Civil P. C. In this view of the matter, therefore, I cannot entertain the application of the applicant.

9. This application, therefore, is dismissed with costs.

10. Revision applicationdismissed.


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