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HussaIn Sab Vs. Sitaram Vighneshwar - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 681 of 1951
Judge
Reported inAIR1953Bom122; (1952)54BOMLR947; ILR1953Bom309
ActsCode of Civil Procedure (CPC), 1908 - Sections 152, 551 and 577 - Order 41, Rules 11 and 32
AppellantHussaIn Sab
RespondentSitaram Vighneshwar
Appellant AdvocateG.R. Madbhavi and ;K.R. Bengeri, Advs.
Respondent AdvocateN.M. Hungund and ;S.N. Alagudde, Advs.
Excerpt:
civil procedure code (act v of 1908), section 152, order xli, rule 11 - decree of trial court confirmed by district court--appeal to high court dismissed summarily--application for amendment of decree made to district court--such application whether to be made to trial court or high court--decree of trial court confirmed on appeal whether merges in decree of appellate court.; when an appeal is summarily dismissed by the high court under order xli, rule 11, of the civil procedure code, 1908, the original decree from which the appeal was preferred remains untouched and it is the original decree which is the substantive decree. therefore, if an application is made for amending the decree, it must be made, not to the high court which has exercised its powers under order xli, rule 11, of the..........that the appellate court may dismiss the appeal without sending notice to the court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader; and sub-clause (3) provides that the dismissal of an appeal under this rule shall be notified to the court from whose decree the appeal is preferred. it will be immediately noticed that there is considerable difference between the provisions of order 41, rule 11, and the provisions of order 41, rule 32. under order 41, rule 32, when an appeal is heard after notice, the judgment of the appellate court must be a judgment for confirming, varying or reversing the decree from, which the appeal is preferred, and the decree that is drawn up is a decree confirming or varying or reversing the decree of the.....
Judgment:
ORDER

(1) A suit was filed by the plaintiff to recover possession of a house which was described as bearing No. 1372. The trial Court passed a decree in favour of the plaintiff. The defendant appealed, and the decree was confirmed by the District Judge. There was a second appeal to this Court, and it was summarily dismissed. On January 31, 1951 the plaintiff made an application under Section 152, Civil P. C. to the District Court for amendment of the decree, alleging that the house had been wrongly described as bearing No. 1372 when in fact it bore No. 1572. The District Court granted the application. It is from that order that this revisional application is preferred.

(2) It is contended before me that, inasmuch as an appeal was preferred to this Court, the application for amendment should have been granted, if at all, not by the District Court, but by this Court, and, therefore, the order of the District Judge was without Jurisdiction. Now, the ordinary principle is that the decree of the trial Court is merged in the decree of the appellate Court if an appeal is preferred from, that decree, and the decree that has got to be executed is the decree of the appellate Court; and if any amendment is sought of the decree, it must be of the decree of the appellate Court, and, therefore, an application for amendment should be made to the appellate Court. But the question is whether the position is different when an appeal is summarily dismissed by this Court under Order 41, Rule 11. Now, turning to that rule, it provides that the appellate Court may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader; and Sub-clause (3) provides that the dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred. It will be immediately noticed that there is considerable difference between the provisions of Order 41, Rule 11, and the provisions of Order 41, Rule 32.

Under Order 41, Rule 32, when an appeal is heard after notice, the judgment of the appellate Court must be a judgment for confirming, varying or reversing the decree from, which the appeal is preferred, and the decree that is drawn up is a decree confirming or varying or reversing the decree of the lower Court. But under Order 41, Rule 11, no such decree is to be drawn up. The only provision in Order 41, Rule 11, is that the lower Court has to be notified of the fact that an appeal from its decree has been dismissed. Therefore, the view has been taken by this Court -- and, in my opinion, rightly -- that when an appeal is summarily dismissed under the provisions of Order 41, Rule 11, the original decree from which the appeal was preferred remains untouched and it is the original decree which is the substantive decree. Therefore, if an application has got to be made for amending the decree, it must be made, nof to this Court which has exercised its powers under Order 41, Rule 11, but to the Court which passed the substantive decree.

(3) Turning to the authorities, this view was taken as far back as in 1896, in -- 'Bapu v. Vajir', 21 Bom 548. Sir Charles Farran, Chief Justice, who delivered the judgment of the Court, pointed put that there is a change of language made in 1888 by the Legislature in Section 551 of the old Code of Civil Procedure of 1882, which corresponded to Order 41, Rule 11 of the new Code of 1908, and from that the learned C. J. infers that it was intended that there should be a difference between the results of a dismissal under Section 551 and of a confirmation under Section 577, which corresponds to Order 41, Rule 32. The learned Chief Justice further points out as follows (p. 551):

'...... Dismissing an appeal is, we think,refusing to entertain it as in the case of an appeal dismissed as being time-barred. Where an appeal is dismissed under Section 551, there is no decree of the High Court which can be executed, and the reasoning in the cases to which we have been referred does not apply.'

Mr. Madbhavi has attempted to distinguish this case by pointing out that in this case the District Judge had reversed the decree of the trial Court and that reyersa_l was confirmed by the High Court summarily dismissing the second appeal.

Mr. Madbhavi says that, in the present case, the District Court has confirmed the decree of the trial Court, and that has been further confirmed by the High Court by summarily dismissing the second appeal, I do not see any distinction in principle between the two cases. In both the cases, the appeal was dismissed under Order 41, Rule 11, and the same argument must apply whether the dismissal was of a decree which confirmed the decree of the trial Court or a decree which reversed the decree of the trial Court. Mr. Madbhavi has drawn my attention to a recent decision of the Madras High Court reported in -- 'Subbamma v. Madhavarao', AIR 1946 Mad 492. In that case, a single Judge, Mr. Justice Horwill, took the view that a decree under Order 41, Rule 11, supersedes the decree of the lower Court in the same way as if notice had been issued to the respondent, and, therefore, an application for an amendment of the decree lies to the appellate Court and not to the lower Court.

Mr. Justice Horwill considered the judgment of the Patna High Court reported in -- 'Batuk Prasad Singh v. Ambika Prasad Singh', 11 Pat 409 which was to the contrary effect, and the learned Judge did concede that a great deal was to be said for the argument contained in the Patna case. But what influenced the learned Judge was that he could not depart from the procedure consistently adopted by the Madras High Court. Apart from Patna, the Nagpur High Court has taken the same view see --Sheolal v. Md. Ismail'. & so also has the Chief Court of Lucknow see --'Mt. Sheo Piari v. Tribeni Prasad Te-wari', 16 Luck 697. In my opinion, I am bound by the decision in--'Bapu v. Vajir', & apart from being bound, with respect, I entirely agree with the reasoning of the learned Judges in that case. I am further fortified in my view by the fact that the Patna, Nagpur & Lucknow High Courts have taken the same view as the view taken by this High Court.

(4) It is then urged in the alternative, by Mr. Madbhavi that the proper Court to which the application should have been made was the trial Court, and not the District Court. Mr. Madbhavi says that the decree of the trial Court was confirmed by the District Court, the appellate Court did not vary or reverse the decree, tile .decree remained unaffected, and therefore the plaintiff should have gone to the trial Court. Now, I know that some High Courts have taken the view that, unless the decree of the trial Court is superseded by the appellate Court, the application for an amendment of the decree must be made to the trial Court. I am unable to agree with that view. If a decree of confirmation is passed by the appellate Court, the decree of the trial Court merges in the decree of the appellate Court, and it is impossible to say that the decree of the trial Court is still in existence and it could be amended. The decree which is in existence and which can be executed is the decree of the appellate Court, and not the decree of the trial Court. The fact that the appellate Court does not vary the decree of the trial Court does not make any difference to the legal position that ultimately it is the decree of the appellate Court which is the substantive decree and which must be amended if an amendment is sought.

(5) The application, therefore, fails. Therule is discharged with costs.

(6) Revision dismissed.


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