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Darbo Vs. Kesho Rai - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Judge
Reported in(1887)ILR9All364
AppellantDarbo
RespondentKesho Rai
Excerpt:
amendment of decree - limitation--civil procedure code, section 206--act xv of 1877 (limitation act), schedule ii, no. 178. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are..........application, i consider that, as the matter has come to the notice of the court, the court is bound of its own motion to bring the decree into conformity with the judgment, see shivapa v. shivpanch lingapa i. l. r., 11 bom., 284.--rep.5. there is no sufficient reason in this case for not doing so with reference to the time that has expired since the decree was passed. for the decree is not barred-by-limitation, and it has been explained that although the decree-holder has by amicable arrangement obtained possession of most of the property he is entitled to, he is still kept out of a part, owing to the judgment-debtor's insisting on the terms of the decree.6. the decree will be amended so as to make it a decree for establishment of possession in respect of the house, and for.....
Judgment:

Oldfield, J.

1. The petitioner asks the Court to amend the decree of this Court of the 13th August 1879, so as to bring it into conformity with the Judgment of this Court. There is no doubt, and it is admitted by the opposite party, that the decree requires amendment in the manner asked for ; but it is contended that the application is governed by art. 178 of the Limitation Act, as it is one of those applications for which no period of limitation is provided elsewhere in the schedule or by the Code of Civil Procedure, Section 230.

2. If this article be applicable, there is no doubt that the application is barred, and, in support of the respondent's contention, I have been referred to a decision of a Bench of this Court--Gaya Prasad v. Sikri Prasad, I.L.R., 4 All., 23. It is possible, however, that this case may be considered as overruled by Kishan Singh's case, Weekly Notes, 1883, p. 262, as opposed to the principle therein laid down. I entertain some doubts whether the article does apply, because it appears to me that the article applies only to applications made to a Court to exercise powers which, without being moved by such application, it is not bound to exercise, and not where a Court is asked to do an act which it has no discretion to refuse to do. This has been held by the Madras Court in Kylasa Goundan v. Ramasami Ayyan, I.L.R., 4 Mad. 172, by the Bombay Court in Vithal Janurdan v. Vithojirav Patlajirav I. L. R., 6 Bom., 586, and by this Court in Kishan Singh's case, Weekly Notes, 1883, p. 262.

3. The question in those cases was whether an application for a certificate' made by a purchaser at an auction-sale to the Court ordering the sale was governed by art. 178, and it was held not to be so. The principle on which the Courts proceeded would appear to be equally applicable to the case of an application for amendment of a decree under Section 206 of the Civil Procedure Code, because it is the bounden duty of a Court to see that its decrees are in accordance with the judgments, and to correct them if necessary.

4. Under any circumstances, however, whatever may be the effect of art. 178 of the Limitation Act upon the petitioner's application, I consider that, as the matter has come to the notice of the Court, the Court is bound of its own motion to bring the decree into conformity with the judgment, see Shivapa v. Shivpanch Lingapa I. L. R., 11 Bom., 284.--Rep.

5. There is no sufficient reason in this case for not doing so with reference to the time that has expired since the decree was passed. For the decree is not barred-by-limitation, and it has been explained that although the decree-holder has by amicable arrangement obtained possession of most of the property he is entitled to, he is still kept out of a part, owing to the judgment-debtor's insisting on the terms of the decree.

6. The decree will be amended so as to make it a decree for establishment of possession in respect of the house, and for recovery of possession of the other immoveable property mentioned in the plaint.

7. I make no order as to costs.


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