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Kishori Mohan Vs. Chhanga Lal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1925All187
AppellantKishori Mohan
RespondentChhanga Lal
Excerpt:
.....dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - 4. clearly therefore they were not considering the language of section 152 of the present code of the civil procedure. we cannot say, sitting in revision, that the learned judge failed to exercise his jurisdiction or that in the exercise of his jurisdiction he acted illegally or with material irregularity......a defendant in a suit for sale, he having been treated as a subsequent purchaser. the subordinate judge passed a decree for sale on the 10th of december, 1920. the decree that was framed was incorrect in so far as it ordered the payment of a larger sum than was really due on a proper calculation of the amount payable according to the judgment of the subordinate judge. the applicant submitted to the decree although it ordered him to pay a sum larger than was really due under the judgment of the subordinate judge. the plaintiff was dissatisfied with the decree as he claimed a larger amount. he filed an appeal and the learned district judge dismissed the appeal on the 12th of july, 1921. a final decree for sale followed on the 6th of may, 1922. on the 9th of march, 1923, an execution of.....
Judgment:

1. This application in revision came before one of the learned Judges of this Court and he referred the case to a Bench of two Judges, being of opinion that there was somewhat of a conflict between two cases decided by this Court, viz. Balgovind Rai v. Sheoraj Rai (1918) 16 A.L.J. 451, Sahadeo Gir v. Deo Dutt Misir (1915) 37 All. 323. We shall consider whether there is really any conflict between the two cases or not in the course of this judgment. But it will be necessary to state the facts of the case.

2. It appears that the applicant before us was a defendant in a suit for sale, he having been treated as a subsequent purchaser. The Subordinate Judge passed a decree for sale on the 10th of December, 1920. The decree that was framed was incorrect in so far as it ordered the payment of a larger sum than was really due on a proper calculation of the amount payable according to the judgment of the Subordinate Judge. The applicant submitted to the decree although it ordered him to pay a sum larger than was really due under the judgment of the Subordinate Judge. The plaintiff was dissatisfied with the decree as he claimed a larger amount. He filed an appeal and the learned District Judge dismissed the appeal on the 12th of July, 1921. A final decree for sale followed on the 6th of May, 1922. On the 9th of March, 1923, an execution of the final decree for sale was taken out by the plaintiffs and the defendant applicant paid up the amount for which the decree was executed and then made an application to the learned Subordinate Judge asking him to correct his decree. This application was made on the 21st of March, 1923. The opposite party, the plaintiff, took objection to the hearing of this application on the ground that the court of the District Judge was the only Court which Could correct the decree if any correction was needed. The applicant thereupon made an application to the learned District Judge on the 21st of July, 1923. On the 8fch of September, 1923 the learned Judge passed the order which is sought to be revised. He held that there ought to be some limit to a party's making an application for correction of a decree and he refused to grant the application although he thought that there was some error in the decree of the learned Subordinate Judge.

3. In this Court in the case of Balgovind Rai v. Sheoraj Rai (1918) 16 A.L.J. 451 there was an application in revision against the order of a District Judge who amended a decree which he had affirmed in appeal and which was passed by a Munsif. In the circumstances of that case this Court held that, the District Judge had no jurisdiction to correct the error in the decree of the Munsif. It will be noticed that the decree of the Munsif had been passed under the old Cede and the language employed by their Lordships who heard the application shows that they were considering the provisions of Section 206 of the Code of Civil Procedure. It is true that Section 206 of the old Code is not specifically mentioned, but the learned Judges used the following language:

It was necessary for the applicant to show not a variance between the judgment of the Munsif and the decree of the Munsif, but a variance between the judgment of the District Judge and the decree of the District Judge.

4. Clearly therefore they were not considering the language of Section 152 of the present Code of the Civil Procedure. In the ease of Sahadeo Gir v. Deo Dutt Misir (1915) 37 All. 323 already referred to, this Court had no hesitation in ordering the correction of a judgment and a decree of a subordinate Court. There was, however, no appeal to any appellate Court and this Court was concerned only with one decree and one judgment. In our opinion there is really no conflict between the two cases mentioned.

5. Coming to the present case, from the statement of facts already made, it would appear that the applicant has been guilty of laches to a very great extent. He did not examine the decree that was passed against him in the first instance. There was an appeal and he was a party to that appeal. He did not bring the fact to the notice of the appellate Court that the decree of the Court below had been framed for a sum in excess of what was really due under the judgment; of that Court. When the final decree was passed be did not bestir himself. 'When the decree was executed he quietly paid up and then discovered that he had paid a sum larger than what was really due by him. Under Section 152 of the Civil Procedure Code, there is no right in any party to have a clerical or arithmetical mistake corrected. The matter is left to the discretion of the Court and the discretion has to be exercised in view of the peculiar facts of each case. In this case the District Judge did exercise that discretion and was of opinion that in view of the peculiar facts of the case he should not correct the mistake which was after all for a sum which was about one-seventh of the total amount payable. We cannot say, sitting in revision, that the learned Judge failed to exercise his jurisdiction or that in the exercise of his jurisdiction he acted illegally or with material irregularity.

6. We therefore dismiss the application with costs which will include Counsel's fees in this Court on the higher scale.


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