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Kishen Prasad and Co. Ltd. Vs. Fullumal Hiralal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 1080 of 1920
Judge
Reported inAIR1924Bom166; (1923)25BOMLR888
AppellantKishen Prasad and Co. Ltd.
RespondentFullumal Hiralal
Excerpt:
.....the pasting of the decree in the suit - plaint can be amended if the decree is preliminary and not final-rules of the high court of judicature at bombay (1922), rules 253 and 266-practice-procedure.; the plaintiffs applied for leave to amend the plaint and the decree passed in a suit in order to enable them to recover muccadamage charges in respect of certain cotton bales which they had received from the defendants. the plaintiffs' manager was appointed receiver of those bales and the plaintiffs claimed to recover the charges in the course of the received passing his accounts before the commissioner:-;(1) that an amendment of the plaint cannot ordinarily be made after a final decree has been passed.;(2) that under rule 266 of the bombay high court rules the plaintiffs, in regard to..........case can be treated as an authority for allowing the amendment of a pleading in a case where the decree is final and has been sealed, or, as it is sometimes expressed, 'perfected.' so far as i am aware there is no indian authority to the contrary. mr. lalji for the plaintiffs referred to sukhdeo prasad v. lachman singh i.l.r. (1902) all. 456 where it is said that the suit had proceeded up to judgment and decree. these words are ambiguous, and i think they must, as there used, mean that the suit was ready for judgment and the decree that follows on the judgment, not that a decree had actually been passed. the case is, of course, different from one where an amendment is allowed by an appellate court, for in such a case the suit is, so to speak, proceeding in that appellate court. but.....
Judgment:

Fawcett, J.

1. In this motion the Court's leave is asked to amend the plaint by adding certain words in the first prayer for relief which will have the effect of making payable to the plaintiffs the expenses, etc., payable to the muccadams for storing, etc., the 407 and 16 bales of cotton which the plaintiffs had received from the defendants. In its decree of April 8, 1922, the Court appointed the manager of the plaintiffs to be Receiver of these bales ; and the question of plaintiffs' right to recover these expenses has arisen in the course of the Receiver passing his accounts before the Commissioner. The Chamber Judge has held that they are not covered by the decree, and hence this motion. It is also asked that the decree should be amended similarly on such terms as the Court may deem fit to impose on the plaintiffs.

2. The first question that arises is whether the amendment of the plaint, which is asked for, falls under Section 153 and Order VI, Rule 17, of the Civil Procedure Code, Section 153 allows the Court to give leave for amendment at any time in any proceeding in a suit, and Order VI, Rule 17, says that the Court may allow such amendments at any stage of the proceedings. Prima facie this limits the Court to allowing amendments in pleadings during the actual pendency of the suit and not after the decree has been actually drawn up and sealed. This is the general rule which applies in the case of the corresponding rule of the English Supreme Court, viz., Order XXVIII, Rule 12. At page 377 of the Yearly Practice of the Supreme Court of 1923 it is said : 'Speaking generally, an amendment of an indorsement or pleading cannot be made after judgment has been entered, unless the case comes within the 'slip' Rule'. That 'slip' Rule is the rule allowing amendments of a judgment or decree for clerical or arithmetical mistakes corresponding to Section 152 of the Civil Procedure Code. It goes on to say : 'But the words of Rule 1, 'At any stage of the proceedings' occur also in Order XVI, Rule 11, and upon those words the Court of Appeal held, in The Duke of Buccleuch [1892] P. 201 that the power given by the Rule may be exercised after final judgment, as long as anything remains to be done in the case.''In that particular case it will be found that there was a limitation that consent should be given by the party that it was proposed to add and it was held that the decree was not final. I do not suppose that that case can be treated as an authority for allowing the amendment of a pleading in a case where the decree is final and has been sealed, or, as it is sometimes expressed, 'perfected.' So far as I am aware there is no Indian authority to the contrary. Mr. Lalji for the plaintiffs referred to Sukhdeo Prasad v. Lachman Singh I.L.R. (1902) All. 456 where it is said that the suit had proceeded up to judgment and decree. These words are ambiguous, and I think they must, as there used, mean that the suit was ready for judgment and the decree that follows on the judgment, not that a decree had actually been passed. The case is, of course, different from one where an amendment is allowed by an appellate Court, for in such a case the suit is, so to speak, proceeding in that appellate Court. But when a decree has actually been passed, if it is final, the original Court is, generally speaking, functus officio, and the occasion for an amendment of pleadings cannot really arise. Mr. Lalji says that the decree in question is only a preliminary one. It is, no doubt, marked as a preliminary decree on mortgage. But as expressly declared by Clause (2) of Section 2 of the Civil Procedure Code, a decree can be partly preliminary and partly final ; and there can, I think, be no doubt whatever that, in so far as the decree fixed the sum of Rs. 68,425-0 6 as the sum to be paid by the defendants to the plaintiffs for debt and interest, it is final, for it thereby fixes the amount due from the defendants up to the date of the decree. It is no doubt preliminary in so far as it subsequently declares that the plaintiffs have a first charge on certain immoveable property for the amount due and payable by the defendants to the plaintiffs under the decree and in so far as it appointed the plaintiffs' manager to be a Receiver of these 407 and 16 bales and directed that he should pass his accounts before the Commissioner. In regard to the latter point, it may be mentioned that Order XL, Rule 1(1)(a) does declare that the Court can appoint a Receiver of any property, whether before or after decree. And there is the authority of the Privy Council in Administrator General of Bengal v. Prem Lall Mullick I.L.R. (1895) Cal. 1011. p.o for saying that where a Receiver has been appointed by the Court in a suit, the Court may, even though the suit be no longer pending, permit parties to intervene on a question as to the Receiver's costs. So that in that particular regard the plaintiffs have a stronger case than in regard to an amendment of the pleadings, and a consequent alteration of the decree as to the amount that was payable by the defendants to the plaintiffs at the date of the judgment. In regard to the latter point, the whole object of the proposed amendment of the plaint is that the Court should subsequently allow an amendment of the decree, so as to enable the plaintiffs to add to the amount decreed against the defendants a further sum of Rs. 5,000 odd in regard to the muccadamage charges for these bales; and the case really falls under Bale 266 of this Court which restricts the powers of the Court, after the decree or order has been sealed, to amend the same. It allows this to be done only so as to bring it into conformity with the judgment or rectify an inaccuracy or clerical or arithmetical error. Its last clause is 'Save as aforesaid, no alteration or variation shall be made without a review of judgment and re-hearing; under the provisions of Section 114 and Order XLVII of the Code of Civil Procedure'.

3. Subject to a qualification, which I will deal with later, the alteration which the plaintiffs seek seems to me to be clearly one which cannot now be allowed by this Court save in accordance with the provisions for review of judgment, which are referred to in the rule; and as a somewhat analogous case I may refer to the case of Glasier v. Rolls (1889) 62 L.T. 305 where a judgment had been passed allowing certain costs but no provision had been made for the costs of the shorthand notes of the reporters, and the Court was asked to allow the judgment to be amended by inserting a provision for those costs, though they had not been asked for at the trial. The Court of Appeal unanimously refused this application, and in his judgment Bowen L.J. says (p. 306 ):

It is quite a different thing to come after a judgment and ask that is should be amended so as to express the real intention of the court, entertained by the Court at the time the judgment was given.... But to seek to alter the judgment by asking that something may be embodied in it the demand for which was not even thought of at the time, and was never brought to the attention of the court, is really to ask us to make a different judgment from that which has already been perfected.

4. I think those remarks apply equally to the present case.

5. It was alleged by Mr. Lalji that it was a mere inadvertence which led to the omission of the plaintiffs to ask for relief in regard to these particular expenses, and no doubt that may be so. But, on the other band, the case of Sir Jehangir Cowasji v. The Hope Mills Limited I.L.R. (1908) 33 Bom. 216 : 10 Bom. L.R. 488 shows that the Court should not ordinarily draw any such presumption of inadvertence; and reference to my notes of the proceedings underlying the ex parte decree shows that the plaintiffs' witness Niranjanprasad Dwarkadas stated that Bs. 59,462-10-6 was the sum due to the plaintiffs up to March 19, 1920, and that after that date no item was debited to the defendants except interest. It seems difficult to understand why the plaintiffs should not have paid these charges when they became due and debited them to the defendants in their account, so that they would naturally have been brought to the attention of the Court.

6. The result is that, subject to the qualification, which I have already mentioned, I hold that the motion is misconceived and should not be allowed. The plaintiffs, in regard at any rate to such expenses incurred up to the date of the Receiver taking possession, in my opinion, can only proceed by an application for review of judgment under Order XLVII of the Civil Procedure Code, I must not, however, be taken to encourage such an application. There are various difficulties in the way of the plaintiffs, for instance, limitation, and the necessity of showing that the case falls properly under Order XLVII, Rule 1, as construed in the recent Privy Council judgment in Chajju Ram v. Neki : (1922)24BOMLR1238 .

7. Now I come to the qualification I have mentioned. I think a distinction can rightly be made as to costs in respect of muccadamage, etc., which became leviable for the storage, etc., of these bales from the date of the Receiver taking possession of them as Receiver. I have already pointed out that there is the authority of the Privy Council for entering into questions as to the Receiver's accounts, even although the suit may not be pending, and I have also pointed out that in my opinion the decree is preliminary with regard to the Receiver taking certain action and passing his accounts. That being so, Rule 258 applies, namely, in every decree and order that is not final liberty to apply shall be implied. It is open, in my opinion, to the party interested to apply in regard to any question that may arise as to the Receiver's accounts, so far as they are accounts in respect of any liability subsequent to his appointment as Receiver taking effect; and to that extent I do not think that Rule 266 bars any alteration of or addition to the terms of the preliminary decree that may be justified. I, therefore, leave that position also open to the plaintiffs.

8. Subject to that, the motion is discharged with costs.


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