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Ram Saran and anr. Vs. Persidhar Rai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1888)ILR10All51
AppellantRam Saran and anr.
RespondentPersidhar Rai and ors.
Excerpt:
civil procedure code, section 206 - power of lower court to amend decree affirmed on appeal. - - lachmi prasad, not reported, decided on the 22nd december 1886. 6. the amendment was, therefore, properly made and has caused no failure of justice......in sundara v. subbana i. l. r., 9 mad., 354, where collins, c. j., and muttusami ayyar, j., concurred in holding that, under section 206 of the civil procedure code, the court has power to amend its decree by bringing it into conformity with the judgment after such decree has been confirmed on appeal. this view of the law was accepted by oldfield and brodhurst, jj., in misc. no. 213 of 1886, mohan lal v. lachmi prasad, not reported, decided on the 22nd december 1886.6. the amendment was, therefore, properly made and has caused no failure of justice.7. i dismiss this appeal with costs.
Judgment:

Mahmood, J.

1. The arguments which Mr. Sukh Ramon behalf of the appellants and Mr. Juala Prasad on behalf of the respondents have addressed to me raise only two questions for determination:

(1) Whether, with reference to the order of the 17th April 1886, the present execution proceedings were barred by the rule of res judicata under the ruling of the Privy Council in the case of Mungal Pershad Dichit v. Grija Kant Lahiri I. L. R., 8 Cal., 51: L. R., 8. I. A., 123, and Rup Kuari v. Ram Kirpal Shukul I. L. R., 6 All., 269.

(2) Whether the order made by the Lower Appellate Court on the 18th June 1886, amending its decree of the 19th November 1883, was legal, in view of the circumstance that the decree has been subjected to appeal to this Court, and the final decree in the case was passed by this Court on the 19th March 1885.

2. Upon the first of these two points I do not think it is necessary to say anything beyond observing that the two cases relied upon do not apply, because the effect of the Judge's order of the 17th April 1886 was to hold that the decree, so long as it remained unamended, was not capable of execution and that it needed amendment. The present application is not one in which the name unamended decree is sought to be executed, but it is an application which relates to the execution of the decree after amendment.

3. The second question, however, is the only real question in the case, and it is a question of law, because the language of Section 206, which enables the Court passing a decree to amend its decree, is silent as to whether such amendment can be made by such Court after the decree sought to be amended has already become the subject of an appeal before a higher tribunal. Illustrations of how difficulties may arise in connection with the exercise of the power conferred by that section are to be found in some of the reported cases--in Raghunath Das v. Raj Kumar I. L. R., 7 All., 276, 876, and Surta v. Ganga I. L. R., 7 All., 411, 875, but this is the first time I have had specifically to deal with the question whether or not the exercise of these powers by a Court passing a decree is legal after the decree has been the subject of an appeal. Mr. Sukh Bam argues that under the Pull Bench ruling of this Court in Shohrat Singh v. Bridgman I. L. R., 4 All., 376, it is the decree of the last Court only which can be executed; and inasmuch as here the decree of the last Court was that of the High Court, dated the 19th March 1885, and such decree was silent as to the specification of the plots, therefore the amendment of the decree by the Lower Appellate Court was illegal, because it was not that decree that could be executed. In dealing with this contention, I think it is enough to say that the effect of that Pull Bench ruling was explained by OLDPIELD, J., in Gobardhan Das v. Gopal Bam I. L. R., 7 All., 366, in which it was held that in cases where a decree of the last Court only affirms the decree of the lower Court, the Court executing the final decree is at liberty to refer to the lower Court's decree for explanation and information. And this view was consistent with the ruling of the Privy Council in Kristo Kinkur Roy v. Rajah Burrodacaunt Roy, 14 Moo. I. A., 465.

4. It is, therefore, clear, in the absence of statutory provision to the contrary, that in a case of this kind, this Court's decree having only upheld the decree of the lower Court, no practical injury can arise in execution, if the lower Court, after the decree had been confirmed by this Court, amended its decree as was done in this case. There is, indeed, no contention here that the effect of the amendment made by the lower Court is such as to alter the effect of this Court's decree, or to render land other than that which was actually claimed and actually decreed liable to the decree.

5. Under these circumstances, I think that the amendment of the decree by the Lower Appellate Court was not opposed to any provision of the law, and that it has caused no injury to the present appellant. In this view I am supported by a ruling of the Madras High Court in Sundara v. Subbana I. L. R., 9 Mad., 354, where COLLINS, C. J., and Muttusami Ayyar, J., concurred in holding that, under Section 206 of the Civil Procedure Code, the Court has power to amend its decree by bringing it into conformity with the judgment after such decree has been confirmed on appeal. This view of the law was accepted by OLDFIELD and BRODHURST, JJ., in Misc. No. 213 of 1886, Mohan Lal v. Lachmi Prasad, not reported, decided on the 22nd December 1886.

6. The amendment was, therefore, properly made and has caused no failure of justice.

7. I dismiss this appeal with costs.


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