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Surta and ors. Vs. Ganga and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1885)ILR7All411
AppellantSurta and ors.
RespondentGanga and ors.
Excerpt:
civil procedure code, sections 206, 622 - order amending decree--high court's powers of revision. - - keene, at that time district judge of saharanpur, who, on the 4th may 1882, passed a decree, in which he clearly said that he dismissed the appeal with costs. keene, or that the decree of the latter failed to give effect to his judgment......procedure code constituted an adjudication separate from that concluded by a decree under the code passed after the parties have been heard and evidence taken. the order in the present case then is a separate adjudication, and is not appealable under section 588. so that the only question which we have to consider is, whether the matter is one of which we can take cognizance in revision under section 622. to decide this the following facts must be borne in mind:the plaintiffs' claim for a share in certain property was decreed by the munsif of daoband on the 31st october 1881. the defendants appealed to mr. h.g. keene, at that time district judge of saharanpur, who, on the 4th may 1882, passed a decree, in which he clearly said that he dismissed the appeal with costs. no appeal from.....
Judgment:

Oldfield, J.

1. In my opinion, there is no power to entertain this reference under Section 622 for the reasons I have given in the similar case of Raghunath Das v. Raj Kumar ante p. 276. There is, in my opinion, an appeal from the amended decree, and consequently Section 622 has no application. The amended decree becomes the decree in the suit and supersedes the original decree. If, instead of applying under Section 622, the party had instituted an appeal from the decree as amended, I cannot think he could be met by the plea that there was no appeal, and if this is so, his proper cause is by way of appeal. Section 540 allows an appeal from every decree or from any part of them, and the decree as amended becomes, in my opinion, the decree in the suit. It is not the decree as it stood before amendment that can be considered the decree in the suit, but the decree after amendment, and there cannot be two decrees at one and the same time in the same suit.

2. I would, on the above grounds, dismiss this application. I shall make no order as to costs.

Mahmood, J.

3. I regret that, for the second time on a question of this nature, my brother Oldfield and I are unable to arrive at the same conclusion. I need not say much on the subject, because in the recent case of Raghunath Das v. Raj Kamar ante p. 276 I explained my reasons for thinking that an order passed under Section 206 of the Civil Procedure Code constituted an adjudication separate from that concluded by a decree under the Code passed after the parties have been heard and evidence taken. The order in the present case then is a separate adjudication, and is not appealable under Section 588. So that the only question which we have to consider is, whether the matter is one of which we can take cognizance in revision under Section 622. To decide this the following facts must be borne in mind:

The plaintiffs' claim for a share in certain property was decreed by the Munsif of Daoband on the 31st October 1881. The defendants appealed to Mr. H.G. Keene, at that time District Judge of Saharanpur, who, on the 4th May 1882, passed a decree, in which he clearly said that he dismissed the appeal with costs. No appeal from this decree was filed, though I should say that a second appeal would lie, under Section 584 of the Code. But on the 10th June 1884, the defendants filed an application, purporting to be one under Section 206 of the Civil Procedure Code, to Mr. Watts, who had succeeded Mr. Keene as Judge of Saharanpur, praying him to amend the decree by substituting the word 'decreed' for 'dismissed.' Of course there could be no question here of an 'arithmetical' error in the decree, so that it was probably said that there was a 'clerical' error. Mr. Watts was asked to interfere under the hat paragraph of Section 206 of the Civil Procedure Code.

4. Now in my judgment in Raghunath Das v. Raj Kumar ante p. 276 to which I have already referred, I anticipated the very difficulty which arises here if we cannot interfere in revision with the order passed by Mr. Watts. I observed that a 'Court which goes beyond what is warranted by the last paragraph of Section 206 may practically be altering the nature of the decree. If such a course were allowed, any Judge, who (as sometimes happens) took an erroneous view of his own judgment, might say, 'I meant so and so by my judgment on this point and on that,' and thus might make alterations going far--beyond merely clerical or arithmetical corrections.' That anticipation has actually been realized in the present case. Not only have we here the case of a Judge who undertakes to say what his predecessor meant, but he goes so far as to say that by 'dismissed' his predecessor meant ' decreed!'

5. I do not consider that Mr. Watts has correctly interpreted the language used by Mr. Keene, or that the decree of the latter failed to give effect to his judgment. I am therefore of opinion that Mr. Watts has exercised his jurisdiction 'illegally and with material irregularity,' within the meaning of Section 622 of the Civil Procedure Code, and that the Court is therefore competent to revise his order. I would allow the application, and, without interfering with the decree of the 4th May 1882, set aside the order of the 10th June 1884.


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