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A.B. Hanumantha Setty Vs. H.S. Anantiah Setty - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 461 of 1952-53
Judge
Reported inAIR1953Kant106; AIR1953Mys106
ActsCode of Civil Procedure (CPC), 1908 - Sections 151 and 152; Mysore Legal Practitioners Rules - Rule 20; Legal Practitioners Act
AppellantA.B. Hanumantha Setty
RespondentH.S. Anantiah Setty
Appellant AdvocateNittoor Srinivasa Rao, Adv.
Respondent AdvocateP.R. Sreenivasan, Adv.
Excerpt:
.....arise. impugned order was quashed and matter remanded to the appellate authority to examine the appeal on merits treating the appeal filed as in time. karnataka value added tax act, 2003 [k.a. no. 30/2005] section 38(1) & karnataka value added tax rules, 2003 rule 48(4):[d.v. shylendra kumar, j] computation of time - assessment order passed by the assistant commissioner of commercial taxes -appeal under section 62 to the appellate authority - computation of period of limitation plea against dismissal of appeal as barred by limitation - held, the last date for presentation of the appeal being a holiday and the appeal presented on the very next day, should be taken to have been filed within the period of limitation in the wake of the provisions of section 10 of the mysore..........decree in accordance with the judgment. in -- 'piyaratna v. wahareke', 54 cal wn 568 (pc) (d) with reference to a provision under the law in ceylon similar to section 152 it was observed there: 'the general rule relating to the amendment of an order of the court is that once an order is passed and otherwise perfected in accordance with the practice of that court, the court which passed the order is functus office and cannot set aside or alter the order, however wrong it may appear to be; that can only be done in appeal.' the amendment is not warranted by the provision of law bearing on the petition and cannot be supported by the allegations contained therein. the order of the lower court is set aside and the application i. a. no. vii is dismissed._parties will bear their own costs. 2......
Judgment:
ORDER

1. On an application I. A. No. VII filed by the defendant under Rule 20 of the Rules under the Legal Practitioners Act in Original Suit No. 8 of 1950-51 of the court of the Subordinate Judge, Chitaldroog, the sum of Rs. 25/- mentioned in the decree as being payable to defendant towards lawyer's fee is ordered to be amended by raising it to the ad valorem fee on Rs. 4500/-. It is conceded that there is no variance between the judgment and the decree that Rs. 25/- was definitely fixed as Advocate's lee in the judgment by the predecessor of the Judge who has now made the order. The provision of law under which the application is filed cannot justify the amendment as it only refers to the mode in which the fee has to be assessed ordinarily, without affecting the power of the court to disallow or reduce the amount if it thinks fit. This as well as the conditions under which the decree once drawn up may be altered or amended are to be gathered from the provisions of the Code of Civil Procedure. There is no reference whatever to this in the order- and it proceeds as if the fee has to be determined for the first time and the propriety of limiting the amount arose for consideration. If the defendant felt aggrieved by the small amount allowed as lawyer's fee in the judgment it was open to him to challenge the same in appeal.

The only ground on which amendment is sought in the application is that the fee awarded is inadequate having regard to the value of the subject matter and nature of the contest. I do not think that this can be a valid reason for the decree being interfered with. Section 152, C. P. C., does not contemplate such errors, assuming it is so sufficient as to give jurisdiction to the Court for the purpose. The section refers only to arithmetical mistakes, clerical errors or those due to accidental slip or omission or inadvertence. None of these is alleged or even suggested to be existing in this instance. Sri Srinivasan on behalf of respondent argued that Section 151, C. P. C. though not relied upon in the petition can be applied to the case. This would lead to the Court being required and competent to exercise the powers in appeal. The section cannot be pressed into service when the remedy otherwise is available but not sought for.

In -- '39 Mys 825' (A), a Division Bench of this Court has laid down that when the decree is in conformity with the judgment and there is no apparent error amendment is not permissible. See also -- 'Hanuma Setty v. Mada Setty', 19 Mys LJ 286 (B). '39 Mys 1036' (C) cited for respondent is distinguishable as the omission to make any direction regarding costs was found to be due to inadvertence. The decision is that of a single Judge and related to an order in a claim case which is different from a decree in accordance with the judgment. In -- 'Piyaratna v. Wahareke', 54 Cal WN 568 (PC) (D) with reference to a provision under the law in Ceylon similar to Section 152 it was observed there:

'The general rule relating to the amendment of an order of the Court is that once an order is passed and otherwise perfected in accordance with the practice of that Court, the Court which passed the order is functus office and cannot set aside or alter the order, however wrong it may appear to be; that can only be done in appeal.'

The amendment is not warranted by the provision of law bearing on the petition and cannot be supported by the allegations contained therein. The order of the lower Court is set aside and the application I. A. No. VII is dismissed._Parties will bear their own costs.

2. Order set aside.


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