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Pitam Lal Vs. Balwant Singh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1925All556
AppellantPitam Lal
RespondentBalwant Singh
Excerpt:
- - the judgment-debtors satisfied the decree in full and the case was struck off. he clearly says :i think, however, that that course is not open to me. ' he would have dismissed the application had he thought that he had any discretion in the matter for he distinctly remarks: i would be prepared to go a step further and hold that when a decree for money had been finally satisfied and discharged, the court is functus officio and can no longer entertain an application for amendment under section 152 of the coda of civil procedure......the learned subordinate judge, who disposed of this application, felt himself compelled to grant the application because he imagined that he had no discretion to refuse it. he clearly says : 'i think, however, that that course is not open to me.' he would have dismissed the application had he thought that he had any discretion in the matter for he distinctly remarks: 'i may, however, note in passing the circumstances which would have made it peculiarly desirable to exercise one's discretion against the applicant in this case if one had the power to do so.' having thought himself compelled to grant the application, he has ordered that the decree should be amended.2. one of the points raised on behalf of the applicant is that the court below had no jurisdiction to amend the decree.....
Judgment:

Sulaiman, J.

1. This is an application in revision from an order amending a decree. A mortgage decree for sale was passed by the Court below which was appealed against to this Court, The question of the liability to pay costs was raised in appeal but the appeal was dismissed for want of prosecution. The judgment-debtors satisfied the decree in full and the case was struck off. Three years afterwards, the respondent Balwant Singh applied to the Court below to have the decree amended on the ground that it was not in strict accordance with the judgment. The learned Subordinate Judge, who disposed of this application, felt himself compelled to grant the application because he imagined that he had no discretion to refuse it. He clearly says : 'I think, however, that that course is not open to me.' He would have dismissed the application had he thought that he had any discretion in the matter for he distinctly remarks: 'I may, however, note in passing the circumstances which would have made it peculiarly desirable to exercise one's discretion against the applicant in this case if one had the power to do so.' Having thought himself compelled to grant the application, he has ordered that the decree should be amended.

2. One of the points raised on behalf of the applicant is that the Court below had no jurisdiction to amend the decree because the matter had been brought up in appeal and was disposed of by the appellate Court. The contention is, in my opinion, not sound because there was no decree passed on appeal but merely an order dismissing the appeal for default. There is thus no decree of the appellate Court in which the first Court's decree has merged. It cannot, however, be doubted that under Section 152 of the Code of Civil Procedure the Court had power, under the peculiar circumstances of this case, to refuse the application if it felt inclined to do so. The Court was not bound to grant the application, I have already referred to the fact that the Court would have dismissed the application if it had felt that it had power to do so. Under these circumstances the Court below has not applied its mind to the case correctly and has acted with material irregularity in the exercise of its jurisdiction because it has not exercised its discretion at all. I would allow the revision and, setting aside the order of the Court below, dismiss Balwant Singh's application for amendment of the decree with costs.

Daniels, J.

3. I concur. I would be prepared to go a step further and hold that when a decree for money had been finally satisfied and discharged, the Court is functus officio and can no longer entertain an application for amendment under Section 152 of the Coda of Civil Procedure.

4. The application for revision is allowed and the order of the Court below is set aside and Balwant Singh's application is dismissed with costs in both Courts.


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