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Kale Gowda Vs. Akkayyamma and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtKarnataka High Court
Decided On
Case NumberC.R.P. No. 1108 of 1973
Judge
Reported inAIR1975Kant107; ILR1974KAR692; 1974(2)KarLJ74
ActsCode of Civil Procedure (CPC), 1908 - Sections 151, 152 and 153 - Order 23, Rule 1 - Order 41, Rule 11 - Order 41, Rule 37 - Order 41, Rule 17
AppellantKale Gowda
RespondentAkkayyamma and ors.
Appellant AdvocateD. Puttaswamy, Adv.
Respondent AdvocateR.U. Goulay and ;S.G. Chikkerur, Advs.
Excerpt:
.....that, making xerox copy of the tickets and selling them, collecting money causing loss of revenue to the corporation. there is no error in proceeding with the departmental enquiry simultaneously with the criminal case. - 7. it appears to me that the contention of sri puttaswamy is well founded. therefore, the view taken by the learned civil judge that the decree of the trial court merged with that of the high court, is clearly erroneous. krishna kumar [1967]2scr18 it is well settled that there is an inherent power in the court which passed the judgment to correct a clerical mistake or an error arising from an accidental slip or omission and to vary its judgment so as to give effect to its meaning and intention......of the civil judge at kolar claiming to be the adopted son of one chickkasomegowda to whom the suit properties belonged. his case was that chikka-somegowda (his grandfather) took him in adoption and under a registered will dated 30-10-1948 executed by him bequeathed the suit properties in his favour and named m. gangappa the first defendant in the suit as executor of the will to manage the suit properties during his (petitioner's) minority. it appears the said gangappa came into possession of the suit properties and mortgaged some of them in favour of the third respondent duggegowda. the petitioner, after he attained majority, brought the said suit for various reliefs. having held that the aforementioned will was valid, the petitioner was declared to be the owner of the suit.....
Judgment:
ORDER

1. This revision petition under Section 115, Civil P. C. raises the question that, when an appeal is dismissed as withdrawn by the Appellate Court on a motion made by the party concerned under Order 23, Rule 1, Civil P. C., can the decree of the trial Court be said to have merged with the decree of the appellate Court, and if so, should an application for amendment of the judgment and decree passed by the trial Court be made only to the appellate Court? The decision of this revision petition depends upon the answer to the said question, and it arises in the following circumstances:

2. The petitioner filed O. S. No. 25 of 1964 on the file of the Civil Judge at Kolar claiming to be the adopted son of one Chickkasomegowda to whom the suit properties belonged. His case was that Chikka-somegowda (his grandfather) took him in adoption and under a registered will dated 30-10-1948 executed by him bequeathed the suit properties in his favour and named M. Gangappa the first defendant in the suit as Executor of the Will to manage the suit properties during his (petitioner's) minority. It appears the said Gangappa came into possession of the suit properties and mortgaged some of them in favour of the third respondent Duggegowda. The petitioner, after he attained majority, brought the said suit for various reliefs. Having held that the aforementioned Will was valid, the petitioner was declared to be the owner of the suit properties and was also held entitled to recover possession of the suit properties which were then in the possession of a receiver appointed in some other proceeding. However, his case that the mortgage created by M. Gangappa in favour of the third respondent was not binding on him was not accepted, and it was held that the same was binding on him.

3. Despite holding that the petitioner was entitled to recover possession of the suit properties while dealing with Issue No. 5, there was no direction to that effect either in the order portion of the judgment or in the preliminary decree. Therefore, the petitioner filed an application I. A. No. 18 on 19-12-1966 under Sections 151, 152 and 153, Civil P. C. for amendment of the judgment and decree by incorporating the said relief therein; again on 6-1-1972 he filed another application I. A. No. 24 with a similar prayer.

4. It may also be mentioned here that the said Gangappa had also filed an appeal to this Court RFA No. 29/1967 against the judgment and decree in that suit and the petitioner had also filed cross-objections, and both the appeal and the cross-objections were dismissed as withdrawn by this Court on 10-11-1970.

5. The learned Civil Judge rejected both the applications -- I. As. 18 and 24 --taking the view that the decree of the trial Court merged with that of the appellate Court in RFA No. 29/1967 and that the application for amendment of the judgment and decree in the matter indicated therein should have been filed in the latter Court only, and, in taking that view he relied upon Ramanna v. Sreeramulu, (AIR 1958 Andh Pra 768) in which it is said thus:

'There is no difference in essence between a judgment dismissing an appeal under Order 41, Rule 11, Civil P. C. or that made under Order 41, Rule 37, Civil P. C In both the cases, the judgment of the appellate Court adjudicates upon the rights of the parties though in one case the manner of disposal is concise and speedy and in the other it takes a more elaborate form and longer time. Whether the appeal is dismissed in limine against the ex parte respondent or dismissed after hearing the respondent, it is the decree of the appellate Court that governsthe rights of the parties. As the appellate decree is the final decree and the decree of the lower Court merges with it, it follows that the application for amendment of the decree should be made to the appellate Court.'

In this revision petition, it is the legality and the correctness of the said view taken by the learned Civil Judge, that are assailed.

6. It was contended by Sri D. Puttaswamy learned Counsel for the petitioner that the view taken by the learned Civil Judge that the decree of the trial Court merged with that of the appellate Court in RFA No. 29 of 1967 and hence the two applications I. As. 18 and 24 for amendment of the judgment and decree should have been filed in the latter Court, is manifestly erroneous, and that the decision relied upon by the learned Civil Judge is not at all applicable to this case. Elaborating the contention what he submitted was that it is no doubt true that while dealing with an appeal either under Order 41, Rule 11 or under Order 41, Rule 17, Civil P. C. the Court adjudicates upon the rights of the parties though in one case the manner of disposal is summary and in the other it is more elaborate and that hence the decree of the trial Court merges with that of the appellate Court and necessarily an application for amendment of the judgment and decree should be filed in the appellate Court, but when an appeal is dismissed as withdrawn by the appellate Court on a prayer made by the party concerned to withdraw the same under Order 23, Rule 1, Civil P. C. without seeking liberty to file a fresh appeal, the appellate Court does not adjudicate upon the rights of the parties but merely permits the appeal to be withdrawn leaving the decree of the trial Court to remain intact, and in such a case the application for the amendment of the judgment and decree can only be made to the trial Court.

7. It appears to me that the contention of Sri Puttaswamy is well founded. When an appeal is dismissed as withdrawn consequent upon the motion made by the party concerned to withdraw the same under Order 23, Rule 1, Civil P. C. as in the present case, the appellate Court does not adjudicate upon the rights of the parties forming the subject-matter of the suit -- or in other words, does not judicially deal with the matter of the suit -- but merely dismissed the appeal as withdrawn leaving the decree of the trial court to remain intact. To put it differently, what the appellate Court does in so dismissing the appeal is to pronounce that the appellant does not wish to proceed with the appeal, but it does not confirm the decree or the decision appealed from, and, in this connection the following observations of the Privy Council in Chandri Abdul Majid v. Jawahir Lal, (AIR 1914 PC 66) are ap-posite:

'The order dismissing the appeal for want of prosecution did not deal judicially withthe matter of the suit and could in no sense be regarded as an order adopting or confirming the decision appealed from. It merely recognised authoritatively that the appellant had not complied with the conditions under which the appeal was open to him, and that therefore he was in the same position as if he had not appealed at all.'

This principle, in my opinion, equally applies to a case where an appeal is dismissed as withdrawn as in the present case. I may also here refer to the following observations in Deoki v. Jwala Prasad : AIR1928All679 which support the view I have taken:

'In our opinion when the appeal was withdrawn the order which we passed on that occasion granting permission to withdraw the appeal under Order 23, Rule 1 was not a decree so as to supersede the decree of the Court below. When an appellate Court does not judicially deal with the matter of a suit but merely permits an appeal to be withdrawn so that the decree of the Court below is left intact it cannot be said that it has confirmed the decision appealed from. It merely recognises authoritatively that the appellant does not wish to go on with his appeal. We may refer to the case of (AIR 1914 PC 66) where their Lordships of the Privy Council laid down this proposition with regard to an appeal which had been dismissed for want of prosecution. This case was followed in Nand Lal Saran v. Dharam Kirti Saran : AIR1926All440 , where the appellate Court had held that no appeal in fact lay to that Court. There is another case of this Court viz. Pitam Lal v. Balwant Singh : AIR1925All556 to the same effect. We are of opinion that that principle applies to an equal extent to the case where the appeal is withdrawn.'

But, when an appeal is disposed of either under Order 41, Rule 11 or under Order 41, Rule 17, Civil P. C., the position is different; while disposing of an appeal under those provisions, the Court undoubtedly adjudicates upon the rights of the parties forming the subject-matter of the suit though the manner of disposal in one case is summary and in the other it is more elaborate, and therefore the decree of the trial Court gets itself merged in the decree of the appellate Court. But, as mentioned earlier, that is not so when an appeal is dismissed as withdrawn as in the present case. Therefore, the view taken by the learned Civil Judge that the decree of the trial Court merged with that of the High Court, is clearly erroneous. The High Court while disposing of the said appeal did not adjudicate upon the rights of the parties forming the subject-matter of the suit, but merely dismissed the appeal as withdrawn without touching in any manner the decree of the trial Court, and consequently the decree of the trial Court remained intact. By dismissing the said appeal as withdrawn, the High Court did not, in any manner or to any extent, judicially deal with the rights of the parties which formed the subject-matter ofthe suit. That being the case, the application for amendment of the judgment and decree can only be filed in the trial Court, and the view taken by the learned Civil Judge to the contrary cannot be sustained.

8. Dealing with the merits of the applications I. As. 18 and 24, it was submitted by Sri Puttaswamy that even though the learned Civil Judge declined to entertain them, he held that this is a fit case in which the amendment sought for should be allowed, and that therefore instead of remitting the case to him this Court itself may examine the propriety or correctness of the said finding. The learned Counsel appearing for the respondents have no objection to do so.

9. While dealing with the said applications on merits, this is what the learned Civil Judge, has stated in the course of the impugned order:

'It is clear that the intention of the learned Judge was to direct possession of the properties to the plaintiff as pleaded in the plaint, as otherwise, the plaintiff will have to be driven for another suit for possession for no fault of his. Unless the relief of possession is granted, the plaintiff will have no practical benefit. Admittedly, the properties are in possession of the receiver as per orders of the Court and that possession will have to be given to the plaintiff and of course on payment of the mortgage amount due to the 2nd defendant, which is held to be binding on the plaintiff. This omission in my opinion is accidental and requires to be amended and it is a fit case wherein the amendment has to be allowed.'

The argument pressed before me by Sri Puttaswamy in support of the said finding of the learned Civil Judge is that under Section 152, Civil P. C. mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may be corrected at any time by the Court either on its own motion or on an application by any of the parties, and in the present case the omission to incorporate in the order portion of the judgment and in the preliminary decree the relief regarding recovery of possession of the suit properties is due either to an accidental slip or omission, and that therefore the amendment sought for is absolutely necessary to bring it in conformity with the judgment-which the Court intended to pass and give effect.

10. I think Sri Puttaswamy is right in making this submission. It is undisputed that one of the issues raised in the suit filed by the petitioner was whether he is entitled to possession of the suit properties (Issue No. 5). The learned Civil Judge who tried that issue as mentioned earlier recorded a clear finding in the affirmative, but in the order portion of the judgment and in the preliminary decree the said relief was not incorporated, and, that must have been dueto accidental slip or omission. But there cannot be any doubt that the Court by its judgment intend to give him that relief and indeed gave it, and, as pointed out by the Supreme Court in Samarendra v. Krishna Kumar : [1967]2SCR18 it is well settled that there is an inherent power in the Court which passed the judgment to correct a clerical mistake or an error arising from an accidental slip or omission and to vary its judgment so as to give effect to its meaning and intention. This is, therefore, pre-eminently a fit case in which the amendment sought for should be granted.

11. Before closing, I may notice a submission of Sri S. G. Chikkerur learned Counsel for the third respondent. He submitted that as long as the mortgage is not redeemed in accordance with law the petitioner is not entitled to recover possession of the mortgaged properties and that position may be made clear in the order to be passed in this revision petition. In answer to this submission, what Sri Puttaswamy submitted was that his client would not and cannot recover possession of the mortgaged properties without discharging the mortgage debt, and, even the learned Civil Judge in the impugned order has stated that the petitioner will take possession of the mortgaged properties only on payment of mortgage amount, and that would not be an hindrance to grant the amendment sought for. In the face of what Sri Puttaswamy submitted, I think it is unnecessary to say anything else in this regard. It is however made clear that the petitioner shall recover possession of the mortgaged properties only after discharging the mortgage debt, and, regarding the other properties he is entitled to recover possession from the receiver immediately.

12. In the result, this revision petition is allowed, the impugned order is set aside, and I. As. 18 and 24 filed by the petitioner are allowed. The concerned Court is directed to carry out the necessary amendment in the order portion of the judgment and in the preliminary decree as indicated above. No costs.

13. Let the records of this case be sent to the lower Court immediately.

14. Petition allowed.


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