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Balgobind Rai and ors. Vs. Sheoraj Rai - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1918All341; 46Ind.Cas.376
AppellantBalgobind Rai and ors.
RespondentSheoraj Rai
Excerpt:
amendment of decree - decree of trial court affirmed by appellate court--judgment and decree of trial court, variance between--decree to he amended. - .....the principal sum, interest up to date of suit and interest pendente lite and future interest. the munsif decreed the plaintiff's claim 'as proved' with costs and directed a decree to be prepared in the terms of section 88 of the transfer of property act. the decree was drawn up and it awarded the plaintiff interest at the contractual rate up to the institution of the suit and up to the date fixed for payment and future interest at 6 per cent. per annum. the defendant appealed. he took no exception to any alleged variance between the judgment of the munsif and the decree. the district judge dismissed the appeal. the decree was made absolute in the year 1906. the decree was put into execution from time to time and partially executed. the present application was made in may 1917 to the.....
Judgment:

1. This application in revision arises under the following circumstances. In the year 1905 a suit was brought on foot of a mortgage. The plaintiff claimed the principal sum, interest up to date of suit and interest pendente lite and future interest. The Munsif decreed the plaintiff's claim 'as proved' with costs and directed a decree to be prepared in the terms of Section 88 of the Transfer of Property Act. The decree was drawn up and it awarded the plaintiff interest at the contractual rate up to the institution of the suit and up to the date fixed for payment and future interest at 6 per cent. per annum. The defendant appealed. He took no exception to any alleged variance between the judgment of the Munsif and the decree. The District Judge dismissed the appeal. The decree was made absolute in the year 1906. The decree was put into execution from time to time and partially executed. The present application was made in May 1917 to the District Judge to bring the decree into accordance with the judgment. The learned Judge granted the application and amended the decree by ordering the provision for future interest and interest pendente lite to be deleted. It is against this order that the present application is made. On the general merits it seems to have been a very belated application, As a matter of fact the decree only awarded the plaintiff what he was legally entitled to. The judgment of the Munsif was certainly capable of being read as decreeing all that the plaintiff claimed and if this were the proper construction of the judgment, there would have been no variance between it and the decree. But the application for amendment of the decree had to be made to the District Judge. Now the District Judge's judgment was to uphold the decree of the Munsif and to dismiss the appeal. It was necessary for the applicant to show, not a variance between the judgment of the Munsif and the decree of the Munsif, but a variance between the judgment of the District Judge and the decree of the District Judge. It is quite clear that there was no variance of any kind between the judgment and the decree of the District Judge. We hold that the Court below had no jurisdiction to amend the decree. We accordingly set aside its order and dismiss the application for amendment dated the 17th of May 1917 with costs in both Courts. Costs in this Court will include fees on the higher scale.


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