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Basant Singh and ors. Vs. Dhan Singh - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtAllahabad High Court
Decided On
Judge
Reported in(1886)ILR8All519
AppellantBasant Singh and ors.
RespondentDhan Singh
Excerpt:
high court's powers of revision - civil procedure code section 622--meaning of 'jurisdiction'--amendment of decree--civil procedure code, section 206--act xv of 1877 (limitation act), schedule ii, no. 178. - - with all the learned judge said on that occasion in illustrating the effect of section 622 of the civil procedure code, i entirely concur, but i respectfully think that the matter before the court was not one of practice, but a matter affecting the revisional jurisdiction of this court--a jurisdiction the importance of which i cannot express in better language than in the words of straight, j. 10. and perhaps the best way to illustrate how these words have been understood by two of the learned judges themselves who were parties to the last full bench ruling, is to cite the case of.....oldfield, j.1. this is an application to revise, under section 622 of the civil procedure code, an order passed under section 206, amending a decree.2. the decree is dated the 10th july 1872; it was for partition of immoveable property, and it appears that applications to execute were made on the 20th june 1875, on the 10th june 1876, and on the 9th june 1879, when a dispute arose as to the execution in reference to a portion of the property, and the court held that the decree was defective in its description of the property, and therefore incapable of execution. the final order was made by this court on the 13th july 1881. on the 8th february 1882, the decree-holder sought to execute the decree in respect of other property, but execution was refused under an order by this court dated the.....
Judgment:

Oldfield, J.

1. This is an application to revise, under Section 622 of the Civil Procedure Code, an order passed under Section 206, amending a decree.

2. The decree is dated the 10th July 1872; it was for partition of immoveable property, and it appears that applications to execute were made on the 20th June 1875, on the 10th June 1876, and on the 9th June 1879, when a dispute arose as to the execution in reference to a portion of the property, and the Court held that the decree was defective in its description of the property, and therefore incapable of execution. The final order was made by this Court on the 13th July 1881. On the 8th February 1882, the decree-holder sought to execute the decree in respect of other property, but execution was refused under an order by this Court dated the 17th March 1884.

3. The decree-holder then applied, on the 23rd February 1885, to amend the decree, and the amendment was made on the 5th May 1885. It is not disputed that the amendment has reference to an arithmetical error, and is one which could properly be made under Section 206.

4. The application, therefore, was properly one coming under the provisions of the section, and which the Court had jurisdiction to entertain under Section 206.

5. The Court's order, therefore, is not open to any objection on the score of want of or excess of jurisdiction, and there is, therefore, no power in this Court to entertain this application under Section 622 of the Civil Procedure Code, with reference to the Privy Council decision in Amir Hassan Khan I.L.R. 11 Cal. 6, and that of the Full Bench of this Court in Badami Kuar v. Dinu Rai Ante p. 111. In the last, the meaning of the Privy Council in the case above-mentioned was fully considered, and it was thus expressed by Pethbram, C.J.--'I understand the Privy Council to mean that if the Court has jurisdiction to hear and determine a suit, it has jurisdiction to hear and determine all questions which arise in it, either of fact or of law, and that the High Court has no jurisdiction under Section 622 to enquire into the correctness of its view of the law, or the soundness of its finding as to facts.' That view was taken by the Full Bench of this Court of the scope and powers of the Court under Section 622, and is binding on us for dealing with cases coming under Section 622. The Court, in the case before us, was within its jurisdiction in amending the decree under Section 206; and whether or not it erred in entertaining the application on the ground of its being barred by limitation or other grounds, these are questions which do not affect the jurisdiction of the Court, so as to enable this Court to interfere under Section 622.

6. I may add, however, that, on the facts stated to us, this is not a case in which, having regard to the facts, I should be inclined to interfere. The application is dismissed with costs.

Mahmood, J.

7. I confess I am wholly unable to accept the preliminary objection urged on behalf of the respondent, to the effect that Section 622 of the Civil Procedure Code does not empower us to interfere in revision with any kind of orders passed by the lower Courts under Section 206 of the Code. This is not the first time that such a question has been raised before me, for I had to consider the matter on two former occasions. The first was the case of Raghunath Das v. Raj Kumar I.L.R. 7 All. 276 and the other was Surta v. Ganga I.L.R. 7 All. 411 and on both those occasions I stated the reasons in my dissentient judgment why the revisional powers of this Court should be exercised under Section 622 of the Civil Procedure Code. In both those cases my view of the law was upheld by the Full Bench of this Court, I.L.R. 7 All. pp. 875 and 876, and in both those cases the amending order was set aside as ultra vires.

8. But, then, it is argued that the Full Bench ruling of this Court in Nagni Ram v. Juva Lal I.L.R. 7 All. 336 which followed the Privy Council ruling in Amir Hassan Khan v. Sheo Baksh Singh I.L.R. 11 Cal. 6 is decisive upon the point, and restricts the revisional jurisdiction of this Court to pure questions of jurisdiction. Further, it is argued that the rule has been narrowed even further by a more recent Full Bench ruling of this Court in Badami Kuar v. Dinu Rai Ante p. III where the view of Prtheram, C.J., was adopted by the whole Court, though Straight, J., delivered a separate judgment not consistent with the opinion of the learned Chief Justice, but surrendered his own views, as he regarded the question as simply one of practice. With all the learned Judge said on that occasion in illustrating the effect of Section 622 of the Civil Procedure Code, I entirely concur, but I respectfully think that the matter before the Court was not one of practice, but a matter affecting the revisional jurisdiction of this Court--a jurisdiction the importance of which I cannot express in better language than in the words of Straight, J., himself: 'I need only add that, in my opinion, if there is one power which it is of the first importance that the Court should possess, it is the power of sanding for the record in civil cases where no appeal lies. Experience shows that in a very great many such cases grave illegalities and material irregularities do occur in the proceedings of the Courts below; and it is essential that in such cases the High Court should have the power of interference.'

9. The ruling of Petheram, C.J., however, in which the rest of the Court concurred, is expressed in these words:

The section has been considered by the Privy Council in the case of Amir Hassan v. Sheo Baksh Singh I.L.R. 11 Cal. 6 and the Full Bench of this Court in the case of Magni Ram v. Jiwa Lal I.L.R. 7 All. 336 and the result of those cases, in my opinion, is that the questions to which Section 622 applies are questions of jurisdiction only. To make my meaning plain, I understand the Privy Council to mean that if the Court has jurisdiction to hear and determine a suit, it has jurisdiction to hear and determine all questions which arise in it, either of fact or of law; and that the High Court has no jurisdiction under Section 622 to inquire into the correctness of its view of the law, or the soundness of its findings as to facts, but that, when no appeal is provided, its decision on questions of both kinds is final.

10. And perhaps the best way to illustrate how these words have been understood by two of the learned Judges themselves who were parties to the last Full Bench ruling, is to cite the case of Bhagwant Singh v. Jageshar Singh Weekly Notes 1886 p. 57 the effect of which I understand to be, that a Court having jurisdiction to hear a suit may say that it has no jurisdiction to hear it, and that its view as to the want of jurisdiction, though erroneous, must be accepted as final and beyond the revisional jurisdiction of this Court under Section 622 of the Code. The same I understand to be the effect of the ruling of the same learned Judges in Abu Said Khan v. Hamid-un-nissa Weekly Notes 1886 p. 39 in which the last Full Bench ruling was expressly cited as an authority for not interfering.

11. Now, I must say with all due respect that I find it impossible to agree in the rule laid down in either of these two cases, and the best manner in which I can state my reason for this view is to go back to the Full Bench ruling in the case of Magni Ram I.L.R. 7 All. 336, to which I was a party, and in which I concurred in the somewhat laconic judgment which Petheram, C.J., delivered in that case. Soon after I found it necessary--because the ruling was being constantly misunderstood--to state my reasons why I had concurred in that ruling, and I did so in Har Prasad v. Jafar All I.L.R. 7 All. 345 which has been fully reported. In that case I stated at considerable length by way of illustration the class of cases to which the provisions of Section 622 of the Civil Procedure Code would apply, and I also explained how I understood the words 'questions relating to the jurisdiction of the Court 'as used in the Full Bench case of Magni Ram I.L.R. 7 All. 336, and the manner in which I interpreted the meaning of the word 'jurisdiction' as used by their Lordships of the Privy Council in the case of Amir Hassan Khan, I.L.R. 11 Cal., 6. But it is contended that the last Full Bench ruling of this Court in badami Kuar's Case [Ante p. III] has overruled all the previous rulings, including the three cases in which I had delivered separate judgments, and in two of which, as I have already stated, my view of the law was unanimously accepted by the Full Court. Now, if those judgments of mine have been actually overruled by the Full Court, I should, of course, how to the (decision. But I find from the report of Badami Knar's Case [Ante p. III] that none of the rulings of this Court to which I have referred were considered, with the exception of the Full Bench ruling of this Court in Magni Ram's Case I.L.R. 7 All. 336, where in the judgment the word 'jurisdiction' occurs, and, as I showed in the case of Har Prasad, I.L.R. 7 All. 345, is the turning-point of the interpretation of that ruling. Yet the exact application of the word to such cases was, I respectfully think, not explained in the last Full Bench ruling in the case of Badami Kuar [Ante, p. III] and the result is that, as I understand that ruling, it has left the matter exactly where the former Full Bench case of Magni Ram I.L.R. 7 All. 336, had left it. At least this is the only manner in which I can understand the ruling of Petheram, C.J., in the case of Badami Kuar, for I find it impossible to conceive that the learned Chief Justice was either unaware of my rulings in the cases of Har Prasad I.L.R. 7 All. 345, of Surta I.L.R. 7 All. 411, and Raghunath Das I.L.R. 7 All. 276, or that he intended to overrule them without expressly referring to them in his judgment. Indeed, he could not have overruled two of them without having overruled two Full Bench judgments to which he himself was a party, and which judgments had not only accepted my conclusions, but also the reasons upon which they proceeded.

12. In this condition of the case-law of this Court, I decline to accept the contention that the last Full Bench ruling in the case of Badami Kuar [Ante, p. III] has swept away the whole of the antecedent case-law of this Court, and all I feel myself bound to do is to interpret the judgment of Petheram, C.J., in that case as best I can. And in doing so the word 'jurisdiction' as used by His Lordship is again the turning-point of the exact meaning to be attached to his ruling. I fully agree with him when he says 'that the questions to which Section 622 applies are questions of jurisdiction only.' But then the question is, what does jurisdiction mean? The learned Chief Justice went on to say that the effect of the Privy Council ruling was 'that if the Court has jurisdiction to hear and determine a suit, it has jurisdiction to hear and determine all questions which arise in it, either of fact or of law, and that the High Court has no jurisdiction under Section 622 to inquire into the correctness of its view of the law, or the soundness of its findings as to facts; but that, when no appeal is provided, its decision on questions of both kinds is final.' I have no hesitation whatsoever in accepting this enunciation of the law, provided that the word 'jurisdiction,' wherever it occurs in this passage, is to be understood in the sense in which I interpreted it in the case of Har Prasad I.L.R. 7 All. 345. The learned Chief Justice's ruling gives no information as to whether that interpretation was right; so long as there is no authoritative ruling binding upon me, which says that my interpretation was wrong, I have no reason to think so. On the contrary, considering that in two of the cases which proceeded upon the same interpretation, the Full Bench has approved my judgments, which judgments again have never been overruled, I think I am justified in saying, notwithstanding the case of Badami Kuar, Ante, p. III, that my interpretation of what constitutes questions relating to jurisdiction is right, and I still adhere to that interpretation. At any rate, as I have already said, with due respect, I am unable to accept the view taken by two learned Judges of this Court in the cases of Bhagwant Singh, Weekly Notes, 1886, p. 57, and Abu Said Khan, Weekly Notes, 1886, p. 39, which go the length of laying down that even wrongful assumption of jurisdiction, or wrongful refusal to exercise jurisdiction, are matters which fall beyond the scope of Section 622. According to my humble opinion, such a view is not only not deducible from, but opposed to, the judgment of Petheram, C.J., in the last Full Bench ruling in the case of Badami Kuar [Ante, p. III] and that the effect of such a view would be to abrogate the whole Section 622 itself. For the view comes to this, that a Court having jurisdiction may wrongly say that it has no jurisdiction; and a Court having no jurisdiction may wrongly say that it has jurisdiction; and yet such erroneous refusal or assumption of jurisdiction could not be interfered with under Section 622 of the Code, because--to use the language employed in one of the judgments--'the Court had jurisdiction to decide, and was bound to decide, whether the suit was or was not within its cognizance.' Yet in the last Full Bench case of Badami Kuar [Ante, p. III] itself the Court interfered because the Munsif had wrongly declined to exercise jurisdiction.

13. I have dwelt upon this matter at such length because I cannot help feeling, with profound respect, that neither the Full Bench ruling in the case of Magni Ram I.L.R. 7 All. 336, nor the last Full Bench ruling in the case of Badami Kuar [Ante, p. III] is sufficiently explicit to place the exact scope of Section 622 beyond doubt, and the doubt has all along arisen over the exact manner in which the word ' jurisdiction ' as used by Their Lordships of the Privy Council in the case of Amir Hassan Khan I.L.R. 11 Cal. 6, is to be understood. In the case of Har Prasad I.L.R. 7 All. 345, I think I said enough to show from the judgment of Their Lordships themselves that they employed the word not in the narrow sense in which it is sought to be interpreted here, limiting it to territorial or pecuniary limits, and to questions relating to the nature of the suit, but in the comprehensive sense in which that word is understood as a term of English law. Now it is not for me, to whom English is a foreign tongue, to interpret the meaning of the English word, and I have, therefore, referred to Wharton's ' Law Lexicon ' in order to ascertain the exact meaning in which the word is used in its legal sense, and that work explains 'jurisdiction' to mean 'legal authority; extent of power; declaration of the law; 'and it is in this sense that I understand it as used by the Lords of the Privy Council in the case of Amir Hassan Khan I.L.R. 11 Cal. 6, and I said so in the case of Har Prasad I.L.R. 7 All. 345. Further, if there is any doubt about the matter, I would refer to the judgment of Lord Penzance in the celebrated case of Gombe v. Edwards L.R. 3 P.D. 103 where the word 'jurisdiction' constantly occurs, not only in His Lordship's own judgment, but in the passages to which he refers from earlier cases, and I think I may safely say that the word is used throughout in the comprehensive sense in which Wharton has explained it. And, indeed, if any further authority is required for my view, I will resort to no less an eminent authority than Lord Mansfield himself, whose use of the word in the leading case of Crepps v. Durden 1 Smith's L.C. 8th ed. 711 seems to me to be wholly consistent with the meaning which I humbly think the word has, and in which sense I understand it to have been used by the Lords of the Privy Council in Amir Hassan Khan's Case I.L.R. 11 Cal. 6. But because the interpretation of the Privy Council ruling depends upon the exact interpretation of the word, and also because much divergence of opinion apparently prevails both among the members of the Bench and of the Bar, I think it will not be out of place to quote a whole passage from the judgment of Lord Mansfield in the case above referred to, in order to illustrate the exact manner in which His Lordship understood and used the word ' jurisdiction ' as a term of law. His Lordship said:

The first question is, whether any objection can be made to the legality of the convictions before they were quashed. In order to see whether it can, we will state the objection: it is this--that here are three convictions of a baker for exercising his trade on one and the same day, he having been before convicted for exercising his ordinary calling on that identical day. If the Act of Parliament gives authority to levy but one penalty, there is an end of the question, for there is no penalty at common law. On the construction of the Act of Parliament the offence is exercising his ordinary trade upon the Lord's Day,' and that without any fractions of a day, hours or minutes. It is but one entire offence, whether longer or shorter in point of duration; so, whether it consists of one or a number of particular acts, the penalty incurred by this offence is five shillings. There is no idea conveyed by the Act itself, that if a tailor sews on the Lord's Day, every stitch he takes is a separate offence; or if a shoemaker or carpenter works for different customers at different times on the same Sunday, that those are so many separate and distinct offences. There can be but one entire offence on one and the same day; and this is a much stronger case than that which has been alluded to, of killing more hares than one on the same day killing a single hare is an offence, but the killing ten more in the same day will not multiply the offence, or the penalty imposed by the statute for killing one. Here repeated offences are not the object which the Legislature had in view in making the statute, but simply to punish a man for exercising his ordinary trade and calling on a Sunday. Upon this construction, the justice had no jurisdiction whatever in respect of the three last convictions.

14. Having read this passage with the greatest care, I find it wholly impossible to doubt that Lord Mansfield, in saying that 'the justice bad no jurisdiction whatever in respect of the three last convictions,' meant that the statute, then under consideration, did not empower the justice to convict more than once for trading on one Sunday, and that therefore the other three convictions were opposed to the Act, were ultra vires, and therefore made 'without jurisdiction.' Is it possible to conceive that the word would have been employed in such a manner and in such a case if its meaning were confined to territorial or pecuniary limits, or to the nature of the class to which the case belongs? The case was undoubtedly of a nature cognizable by the justice, and the only question was whether the law authorized him to convict a person more than once for trading on the same Sunday. Lord Mansfield found that the statute did not so authorize the justice, that his action went beyond the authority of the law; it was therefore ultra vires, and His Lordship denominated such an action to be without any jurisdiction whatever.

15. This is the sense in which I understand the use of the word by the Lords of the Privy Council in Amir Hassan Khan's Case I.L.R. 11 Cal, 6, and by Petheram, C.J., in the Full Bench cases of Magni Ram I.L.R. 7 All. 336, and Badami Kuar [Ante, p. III] and this is the sense in which I interpreted it in the case of Har Prasad I.L.R. 7 All. 345. And to what I said in that case I may add the two very apt illustrations given by Straight, J., in Badami Kuar's Case [Ante, p. III] of what would constitute a question relating to the exercise of jurisdiction 'illegally and with material irregularity' within the moaning of Section 622 of the Code; and I may add that the cases of Surta I.L.R. 7 All. 411, and Raghunalh Das I.L.R. 7 All. 276, which have received the approval of the Full Bench of this Court, furnish further illustration of cases to which the revisional power of this Court under Section 622 would apply. I do not think any further illustrations are necessary, and I need only summarize the effect of all that I have said in this and the preceding cases as to the exact manner in which I understand what constitutes questions relating to the exercise of jurisdiction for purposes of revision. Such questions may refer to the following points:

(i) Territorial limits of jurisdiction.

(ii) Pecuniary limits of jurisdiction.

(iii) Jurisdiction with reference to the nature of the class to which the case belongs.

(iv) Presence or absence of a positive authority or power conferred by the law upon tribunals in cases which satisfy the three preceding conditions.

16. The last is really the only point upon which my views have been doubted, but for such doubt no room is left after reading what I have already quoted from Lord Mansfield's judgment. If a conviction wholly unauthorized bylaw furnishes a case of want of j jurisdiction, I fail to conceive why an action by a civil tribunal, in a manner equally unauthorized, or, may be, positively prohibited by law, should not be held to be a question relating to the want of, or the illegal and irregular exercise of, jurisdiction. I entirely fail to see any difference in principle between the two kinds of cases here contemplated. For instance, take the provisions of Section 111, which authorizes the Court to allow a set-off only in a certain limited class of cases and subject to certain specific restrictions. The suit must be 'for the recovery of money,' and the subject of set-off must be an ascertained sum of money legally recoverable from the plaintiff. The power conferred by the section is denominated throughout in Courts of Chancery as one kind of 'equity jurisdiction'--a phrase which would be unintelligible if the fourth point enumerated by me was not included within the meaning of the word jurisdiction (Story, 'Eq. Juris.,' 11th ed., Section 1430--34). Again Mr. Justice Story's work is full of phrases in which he uses the word jurisdiction in the sense of authority and power. For example, in Section 1431 he has the following: 'And, in the first place, let us consider the subject of set-off as an original source of equity jurisdiction. It is not easy to ascertain the true nature and extent of this jurisdiction.' Now, if the power to allow set-off is a matter of jurisdiction,' I should say that where the action of a Court which allows set-off is in direct contravention of the restrictions imposed upon its authority by Section 111, which creates that authority, the matter would be a proper subject for revision under Section 622 of the Code.

17. I have thus the authority of Lord Mansfield, Lord Penzance, and Mr. Justice Story for the comprehensive meaning which I attach to the use of the word 'jurisdiction,' as a legal term, in the English language. Nor am I aware of any authority which has used the word in any other sense. And so long as I understand the word in the sense in which such eminent authorities have understood and used it, so long shall I hold that the Legislature, in framing Section 622 of the Civil Procedure Code, gave us the authority, the power and the jurisdiction to interfere in the action of the tribunals subordinate to this Court in cases where there is no remedy either by appeal or otherwise, and where those tribunals have either exceeded or wrongly declined to exercise the authority, the power and the jurisdiction which the law confers upon them, or, under the pretence of exercising such authority, power and jurisdiction, have acted against a positive prohibition of the law. And I humbly say, Understand the word 'jurisdiction' in the judgment of the Lords of the Privy Council in Amir Hassan Khan's Case I.L.R. 11 Cal. 6, as a legal expression having a definite meaning in the language and in the country in which Their Lordships delivered the judgment, and no difficulty or inconsistency arises between what Their Lordships said and the express letter of the statute. The case before Their Lordships was one in which two tribunals having full jurisdiction to deal with the case, and in the exercise of such power and authority as that jurisdiction conferred upon then, had come to the definite conclusion that the property which was then in litigation had not been the subject of any such previous adjudication as would furnish a basis for the plea of res judicata. The judgments of the two tribunals were concurrent, and under the Oudh Civil Courts Act they were final. The Judicial Commissioner interfered with them under Section 622, as the High Court of that province, and their Lordships of the Privy Council declared that 'the Judicial Commissioner had no jurisdiction in the case.' Surely not in the limited sense to which the word is sought to be confined here, but in the broad sense of want of authority and power under the law; in other words, in the sense in which it is understood in England. The effect of that ruling, as I have once before fully explained in Har Prasad's Case I.L.R. 7 All. 345, is not to divest this Court of its revisional power of interference in cases where the subordinate tribunals have totally disregarded, either in the affirmative or in the negative, the limits of the authority and power conferred upon them by law, or have acted in contravention of a positive prohibition. For instance, the law says an immoral contract shall not be enforced, because it is opposed to public policy, and if a Court, in direct contravention of this prohibition, enforces such a contract, there would, of course, be no question relating to any of the first three points which I have above enumerated in connection with jurisdiction; but the action of the Court would relate to the fourth point, and this Court could interfere in revision, because the Court below had no legal authority and no power under the law to enforce a contract which the Legislature in its wisdom had said shall not, under any conditions, be enforced.

18. Such, then, are my views in connection with the scope of Section 622 of the Civil Procedure Code; such is my interpretation of the ruling of the Privy Council in Amir Hassan Khan's Case I.L.R. 11 Cal. 6, and such also is my interpretation of the Full Bench rulings of this Court in the cases of Magni Ram I.L.R. 7 All. 336, and Badami Knar Ante p. III, and in the cases of Surta I.L.R. 7 All. 411 and Raghunath Das I.L.R. 7 All. 276. And reading these various cases as I have done, I do not find myself precluded from entering into this case for the purpose of satisfying myself whether the jurisdiction assumed in this case by the lower Court, purporting to act under Section 206 of the Civil Procedure Code, was rightly assumed; and if so, whether its action in amending the decree did not exceed the authority and power which that provision of the law conferred upon that Court, and also whether that Court has not acted against some positive prohibition of the law. I therefore entertain this petition in revision, and I will dispose of it upon what can be shown on either side in the case. And I proceed to consider what actually happened here.

19. The original decree in the case was passed on the 10th July 1872, in a suit for partition of certain pieces of land. The decree, inter alia, declared the plaintiff entitled to land, 27 yards by 25 yards in length and breadth. This would yield an area of 675 square yards, but the decree described it to be 925 square yards, apparently in accordance with the statement in the plaint.

20. The decree does not appear to have been appealed from; but the inconsistency of the figures above stated was detected, apparently for the first time, on the 16th February 1880 by the amin who was deputed, during the course of the execution of the decree, to measure the land. The Munsif who dealt with the execution case held, in the order dated 10th April 1880, that the measurement of the length and breadth of the land was accurately entered in the decree, but that the area, 925 square yards, had been erroneously entered instead of 675, and he allowed execution accordingly. But upon appeal the Judge set aside the order on the 24th December 1880 and pointed out the boundaries of the land which was to be allotted to the decree-holder under the decree. From this order a second appeal was preferred to this Court, and Tyrrell and Duthoit, JJ., held that 'the decree, execution whereof has been attempted, is, as it stands, by reason of inherent errors and inconsistencies, unsusceptible of execution, and it was for the decree-holder to have procured from the Court such amendment as would cure these defects, without which amendment the decree cannot be executed.' The order of this Court was made on the 13th July 1881, and its effect was to annul the proceedings of both the Courts. The decree-holder thereupon made an application to the Munsif, under Section 206 of the Civil Procedure Code, for amendment of the decree, and the Munsif, by an order dated the 5th May 1885, granted the application, and amended the decree so as to allot to the decree-holder an area of only 675 square yards, which, according to the opposite party's own contention, was the extent of land decreed.

21. For the revision of this order this application has been made by the judgment-debtor under Section 622 of the Civil Procedure Code, and the contention urged before us raises two points for determination. In the first place, it is urged, relying upon the ruling of this Court in Gaya Prasad v. Sikri Prasad I.L.R. 4 All. 23 that Article 178, Schedule ii of the Limitation Act applies to this case, and that the amendment of the decree was barred by limitation. It is contended, in the second place, that the decree of the 10th July 1872, being barred by limitation and finally pronounced by this Court to be incapable of execution, the Munsif acted beyond jurisdiction in amending such a decree.

22. As to the first of these points, all I have to say is that on a former occasion, in the case of Ragunath Das v. Raj Kumar I.L.R. 7 All. 276 I respectfully expressed my inability to accept that ruling, holding, as I did then, and still do, that under a proper interpretation of the preamble and Section 4 of the Limitation Act (XV of 1877), the rule of limitation is confined to the litigants, and is inapplicable to acts which the Court may, or has to, perform suo motu. And I think that this view is supported by the principle upon which the rulings in Robarts v. Harrison I.L.R. 7 Cal. 333; Vithal Janardan v. Rakmi I.L.R. 6 Bom. 586 and Kylasa Goundan v. Ramasami Ayyar I.L.R. 4 Mad. 172 proceeded. Section 296 of the Civil Procedure Code empowers a Court of its own motion to amend its decree, and the mere fact that one of the parties has made an application asking the Court to exercise that power will not, in my opinion, render the action of the Court subject to the rule of limitation.

23. As to the next point, I decline to enter into the question whether the decree of the 10th July 1872, was barred by limitation when the amendment was made. The question properly appertains to the stage when execution of the decree is prayed for, and, moreover, the record of the case now before us furnishes no material for any adjudication upon the point. Nor do I think that the order of this Court, dated the 13th July 1881, stood in the way of the amendment. On the contrary, it suggested such amendment, and at any rate cannot be understood to have terminated all future proceedings, whether for securing the amendment or for executing the amended decree. This being my view, the matter stands clear enough. The Munsif had jurisdiction to entertain the application under Section 206 of the Code; he did so entertain it, and in making the amendment his action cannot be regarded as ultra vires, beyond the limits of his legal power and authority, so as to render it open to the objection of the exercise of jurisdiction 'illegally or with material irregularity' within the meaning of Section 622 of the Civil Procedure Code. In laying down this rule I have used the word 'jurisdiction' in the sense in which I have explained it. To use the words of Phear, J., in Lucas v. Stephen 9 W.R. 301 it is a right 'incident to every Court to correct its formal records in such way, if needed, as will make them represent truly the decision which was intended to be judicially expressed when the decision was delivered. In this way blunders of the pen may be set right.' This, indeed, is the scope of the last paragraph of Section 206 of the Civil Procedure Code, and the Munsif in this case only corrected what was obviously a clerical or arithmetical error' in the decree. In the cases of Oomanund Roy v. Maharajah Suttish Chunder Roy 9 W.R. 471; Zuhoor Hossein v. Syedun 11 W.R. 142 and Goluck Chunder Mussant v. Ganga Narain Mussant 20 W.R. 111 the Calcutta High Court, even under the old Code, allowed such amendments, even though the decree had been made the subject of appeal; and the last of these cases is so far similar to the present case that there, as here, the decree was found incapable of execution because it did not contain any clear direction as to the payment of costs, and the High Court had suggested the amendment. All these cases support my view, and indeed go beyond it. But I must state that I am not prepared, in view of the Privy Council ruling in Kistokinker Ghose Roy v. Barrodacant Singh Roy 10 B.L.R. 101 and the Full Bench ruling of this Court in Shohrat Singh v. Bridgman I.L.R. 4 All. 376 to accept the proposition that the power of amending a decree continues in the Court making it after it has become the subject of appeal. Markby, J., in the case of Goluck Chunder Mussant v. Ganga Narain Mussant 20 W.R. III doubted the proposition, and, speaking for myself, I would accept the rule laid down by Couch, J, in Bhanu Shankar Gopal Ram v. Raghunath Ram Mangal Ram 2 Bom. H.C. Rep. 106. But the point does not arise in this case as it has been presented to us.

24. For these reasons I would dismiss this application with costs; but before concluding I wish to point out that this case is distinguishable from our recent ruling in Tarsi Ram v. Man Singh ante p. 492 where the amendment of decree was made after it had been held by a final adjudication to have been barred by limitation, and where the application, with which we had to deal, was in consequence also barred by limitation.


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