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Ram Bharosey Lal Vs. Rameshwar Dayal Chakkiwala and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 2062 of 1977
Judge
Reported inAIR1984All167
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 and 153A; Code of Civil Procedure (CPC) (Amendment) Act, 1976
AppellantRam Bharosey Lal
RespondentRameshwar Dayal Chakkiwala and anr.
Appellant AdvocateR.S. Verma, Adv.
Respondent AdvocateTriloki Nath, Adv.
DispositionRevision allowed
Excerpt:
civil - correction of error - sections 115 and153-a of code of civil procedure, 1908 (as introduced by act of 1976 ) - error in a decree passed by court of first instance - decree merged in the decree of superior court - superior court allowed to rectify the decree. - - obtained a decree for rejectment of ram-eshwar dayal chakkiwala as well as ashok kumar, the two opposite parties in this revision. the submission is not well founded......of the first court, inasmuch as, the boundaries of the house were not mentioned therein. the decree-holder then made an application for correction of this error and the trial court, by its order dated may 15, 1975, directed the correction to be made. the correction was actually made on may 16, 1975. an application to recall the order of correction made by the judgment-debtors was rejected. therefore, they assailed the order of correction in a revision before the district judge but the revision was dismissed on the ground that it was not maintainable. the order in this regard was passed on august 25, 1975. 2. in sept. 1975 the decree was putinto execution and an objection was filedby the judgment-debtors therein saying that the trial court had no jurisdiction to make the correction.....
Judgment:
ORDER

V.K. Mehrotra, J.

1. Ram Bharosey Lal, who is applicant before this Court in the present revision under Section 115, C. P. C. obtained a decree for rejectment of Ram-eshwar Dayal Chakkiwala as well as Ashok Kumar, the two opposite parties in this revision. This was on April 23. 1975 and related to a house of which description, with reference to boundaries, was also contained in the plaint. The decree was assailed in this Court but affirmed However, there was an error in the decree prepared by the office of the first court, inasmuch as, the boundaries of the house were not mentioned therein. The decree-holder then made an application for correction of this error and the trial court, by its order dated May 15, 1975, directed the correction to be made. The correction was actually made on May 16, 1975. An application to recall the order of correction made by the judgment-debtors was rejected. Therefore, they assailed the order of correction in a revision before the District Judge but the revision was dismissed on the ground that it was not maintainable. The order in this regard was passed on August 25, 1975.

2. In Sept. 1975 the decree was putinto execution and an objection was filedby the judgment-debtors therein saying that the trial court had no jurisdiction to make the correction as the decree passed by the trial court has merged in the decree passed by this Court on May 8, 1975. It was also said that in case the correction made by the court below in the decree by specifying therein the boundaries of the house was without jurisdiction, it had to be ignored and further that in absence of the description, the decree could not be executed. The matter was decided by the executing court by its order of July 12. 1977. The learned Civil Judge, who heard the matter, after discussing the legal position and referring to several decisions in an elaborate order took the view that the trial court did not have any jurisdiction to effect correction in the decree after it had been affirmed by this Court. Consequently he held that the decree could not be executed Aggrieved by this order, the decree holder has come to this court in the present Revision.

3. At the hearing of the revision, it was suggested by the learned counsel for the applicant that without going into the merits of the view taken by the executing court, this court may now permit correction of the decree dated April 23, 1975 so that the decree-holder may proceed to execute the decree for which the limitation is still available. He relied upon the decision of this Court in the case of Bhagwant Singh v. Bhao Singh : AIR1932All337 in support of his plea. In that case an application in revision came to be treated as an application made before the High Court itself for correction of the decree where the matter was pending. Sri Triloki Nath, for the judgment-debtor, has urged that the course suggested by the counsel for the decree-holder would not be in accordance with law for Section 153A, C. P. C. as added by Parliament by Act No. 104 of 1976, precluded this Court from making such correction. The submission is not well founded. Section 153A is in the following terms:

'153-A. Power to amend decree or order where appeal is summarily dismissed. Where an Appellate Court dismisses an appeal under Rule 11 of Order XLI, the power of the court to amend, under Section 152, the decree or order appealed against may be exercised by the court which had passed the decree or order in the first instance, notwithstanding that the dismissal of the appealhas the effect of confirming the decree or order as the case may be, passed by the court of first instance.'

4. On its language, this provision is enabling in character which permits the court of first instance also to correct an error in the decree irrespective of the fact that the decree had merged in the decree of a superior court. The provision does not divest the superior court, of its jurisdiction to effect correction in the decree itself.

5. The argument of Sri Triloki Nath is that having regard to the Objects and Reasons of the Bill, resulting in the introduction of Section 153A, it should be ruled that this provision confines the jurisdiction of correcting the error in the court of the first instance. He has read out the Objects and Reasons which show that the provision was introduced in the Civil P. C. on account of conflict in opinion in the High Courts as to whether it was the appellate court or the trial court which could direct the correction. On the plain language used in Section 153A it is not possible to take the view that the ambit of power contained therein can be curtailed by the Statement of Objects and Reasons which itself does not contain anything to lead to the narrower construction attempted to be put on it.

6. There is no dispute between the parties that the limitation for executing the decree is still available to the decree-holder, being 12 years from the date of the decree under Article 136 of the Schedule to the Limitation Act, 1963. It is in the interest of justice to direct that the decree dated April 23, 1975 be corrected in the manner in which it was corrected by the trial court by its order dated May 15, 1975. The decree holder should not be deprived of the fruits of the decree on account of clerical error on the part of the trial court in preparing the decree.

7. Without going into the merits of the order under challenge, and having regard to the nature of the case, I direct that the decree of the trial court dated April 23, 1975 shall be corrected in the manner in which it was corrected by it by its order dated May 15, 1975. A certified copy of the decree, as corrected by the court below, has been handed over to the court today by the counsel for the decree-holder. The Registry shall proceed to prepare a decree on its basis and shall do so expeditiously, if possible, within two months to enable the decree-holder to execute the decree.

8. The revision shall stand disposed of in the aforesaid terms. Parties shall, however, bear their own costs.


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