1. This is a decree-holder's appeal in an execution case. One of the questions raised in the litigation was in respect of certain land on which the defendants had constructed a thatched shed and cattle-troughs. The first Court--the Additional Munsif of Azamgarh--gave the plaintiffs a declaration of title in respect of their land, but refused to order the demolition of these constructions. On an appeal by the plaintiffs the District Judge of Azamgarh modified the decree of the first Court in their favour. He gave them joint possession of the plot of land on which stood the thatched shed and cattle-troughs, and ordered the demolition of these constructions. The defendants appealed to this Court, and obtained a decree setting aside the decree of the District Judge and restoring that of the Additional Munsif. The plaintiffs challenged this decree by an appeal under Section 10 of the Letters Patent, but their appeal was dismissed.
2. Nevertheless the plaintiffs are now seeking to take out execution of that portion of the decree of the District Judge which ordered the demolition of the thatched shed and the cattle-troughs. It seems to me a complete answer to their claim that the decree of the District Judge is no longer in existence, having been set aside by the decree of this Court. The plaintiffs contend that it can be shown, by a detailed examination of the record of the proceedings in this Court, that the decree passed by the single Judge of this Court has not the effect of setting aside the decree of the District Judge in the matter of the thatched shed and the cattle-troughs. It is not denied that the defendants had appealed against the entire decree of the District Judge in so far as it modified the decree of the Additional Munsif. No ambiguity can be pointed out in the terms in which the decree of the single Judge of this Court is framed. It even appears (though I do not think it lay on the respondents to show this) that the said decree is in strict accordance with the operative portion of the judgment. In order to make out a case the appellants ask the Court to examine the pleadings on which this judgment proceeded. It appears that two pleas were taken in the memorandum of appeal to this Court; the first raised a question as to an alleged right of way and the second challenged the propriety of the District Judge's order directing the demolition of the thatched shed and cattle-troughs. This latter plea was abandoned when the case came to be argued on behalf of the defendants-appellants. From this it is contended that a portion of the appeal itself had been withdrawn and that the learned Judge of this Court must not be understood to have decreed that portion of the appeal. In my opinion an execution Court cannot be permitted to turn the record inside out in this way in order to get round the terms of a decree which is, on the face of it, perfectly clear and unambiguous. I must decline to enter into any speculation as to how or why the learned Judge of this Court, under the circumstances above stated, came to pass a decree which in express terms sets aside the decree of the District Judge and restores that of the Additional Munsif. I presume the appellant's case to be that he did so from inadvertence, not perceiving that the decree as worded purports to set aside the whole decree of the District Judge. If it be assumed, for the sake of argument, that this was so, the plaintiffs were by no means without appropriate remedy. They could have applied for review of judgment to the single Judge of this Caurt, or they could have called in question the form of the decree passed by him when they appealed against the same under the Letters Patent. Having done neither of these things, they are not, in my opinion, entitled to seek relief by asking the Court executing the decree to interpret it in the light of the pleadings and of the record generally, so as to put a meaning upon it inconsistent with its plain and unambiguous terms.
3. I ought perhaps to make it clear that I am not ruling that an application for review of judgment would not even now be entertain-able by the Bench of two Judges which decided the appeal under the Letters Patent. I think such an application would be entertain-able, and might or might not be successful but it is not a matter with which the present Bench has any concern.
4. There has been a suggestion that the defendants-respondents are in some way estopped from contesting the appellants' application for execution. It seems to me that the respondents are not setting up any plea previously raised by them. What they say is that the plaintiffs-appellants, whatever their legal rights may have been, have managed this litigation so clumsily that they do not hold a decree entitling them to have these constructions removed. They could not have raised this plea before and a fortiori they cannot have abandoned it. I can see no principle of law which prevents them from raising it now.
5. I would, therefore, dismiss this appeal with costs.
6. In my opinion this appeal should be allowed. I agree in substance with the judgment of the Munsif. Two appeals were brought before this Court by the appellants. It is quite immaterial that they arose out of one suit. They were as distinct as it is possible for two appeals to be. They were in respect of two distinct causes of action. One appeal had relation to a decision in regard to a right of way, the other appeal had relation to a decision for the removal of certain buildings. These two decisions had been given by the District Judge in one decree. The defendants appealed against both the decisions, but in this Court with the sanction of the Court and with the approval of their opponents, the defendants, amongst whom I observe is a well-known Vakil of this High Court, expressly through their Counsel withdrew the appeal upon the second question, namely, the removal of the buildings. To my mind from the moment that withdrawal was made two legal consequences resulted. The District Judge's decree so far as it related to the removal of the buildings became final. In my opinion there is authority in this Court which binds me to that effect. It is to be found in Shaikh Ewaz v. Mokuna Bibi 1 A. 132. It was there laid down that when the time for an appeal from a decree has expired, or an appeal, having been brought, has been dismissed, the decree became final. A withdrawal is the same thing. The second consequence was that this Court never had before it the decree of the District Judge which related to the removal of these buildings. If one might for a moment take the hypothesis that, in spite of a withdrawal on the part of the appellants, this Court entertained an appeal, it would to my mind be doing something ultra vires and without jurisdiction. This Court has no jurisdiction to entertain an appeal which it has allowed to be withdrawn. The appellants' argument is that everything turns upon what happened in this Court upon the hearing of the appeal I am discussing. The respondent's argument is that the decree as drawn up reversed the decree of the District Judge, which ordered the removal of these buildings. But that argument overlooks what to my mind is plain law, viz., that a decree of this Court cannot operate upon a subject-matter which was not before the Court. To construe the decree as the respondent would have us construe it, is to decide that this Court entertained an appeal which was not within its jurisdiction. To my mind it is impossible for this Court to put a construction upon one of its own decrees which leads to such an absurd result. It is said secondly on behalf of the respondent that to construe a decree according to the actual proceedings in the Court of Appeal is to go behind the decree, that is to say, you must shut your eyes to everything which took place after the appeal was filed and merely look at what the decree says in terms. To my mind the appellants are not going behind the decree. I have not read the judgment of the Court of Appeal in the particular case before us and I do not want to do so. A decree can only operate upon the pleadings. It cannot operate upon, or be construed as dealing with, any matter not in the suit. For example to determine whether a case comes within Section 11, Civil Procedure Code, so as to operate as res judicata it is necessary to look at the issues in the suit. Just as a decree in a suit can rest only upon the issues on the pleadings, so a decree on an appeal can only operate upon the subject-matter of the appeal. I presume it could not be contended for one moment that a decree of this Court could possibly be construed so as to include an appeal not in the memorandum of appeal. To my mind a subject of appeal in the memorandum of appeal which is withdrawn by the sanction of the Court, is the same as if the subject was never in the memorandum of appeal at all. In order to construe a decree you must look at the record, not at the judgment, and see what was before the Court, otherwise it is impossible for anybody to know what the decree operated to determine. It is hardly pretended that the result in this particular case is not repugnant to justice. The net result is that if we uphold in this case the decision of the District Judge on the execution application, and give effect to the contention of the respondent, we shall be holding that this Court decided a question which everybody concerned in the case on both sides, and ourselves, know perfectly well has not been, decided at all. To my mind this method of construing blindly the precise words in a decree without reference to the subject-matter before the Court which passed the decree, is a species of construction which does not serve the ends of the justice but defeats them. We are asked by the respondent to shut our eyes to an admitted fact and to construe the document, without regard to that admitted fact, as meaning what everybody knows it was not intended to mean, I decline to accede to such a contention. To my mind on these grounds the appeal ought to be allowed.
7. But in any case even accepting the view that the decree was fallacious, it seems to me that there are abundant powers inherent in the Court to amend and do what is necessary to correct the mistake, if there has been a mistake, in order to do justice between the parties. It is said on the one hand that it was the appellant's own fault, and that he might have taken steps to correct the decree in time. I do not agree, because I think the decree means what I have said in the earlier part of my judgment, and that there is no reason to correct it at all. But such mistakes of practice, which arise from oversight, have always been dealt with under the inherent powers of the Court to correct common mistakes or administrative slips by substituting the real decision for the mistaken decision, and to punish the party in default, if he is in default, by an order as to costs. As has been said over and over again by the English Courts, there is no mistake of practice or procedure which is not liable to correction and punishable by costs, It is further said that there may be difficulties in the way of the appellants in this particular case, because it so happens that the particular Judge who decided this appeal has been promoted to another Court. He, therefore, cannot personally correct the mistake even if it is one, and that inasmuch as an appeal was brought from this decision under the Letters Patent to a Bench' of two Judges of this Court, even if he were here he could not correct the mistake himself. How an appeal under the Letters Patent on a question of the right of way can possibly affect the powers of this Court to correct a mistake, relating to an appeal regarding the removal of buildings, is a matter which I am wholly unable to understand. To my mind the fact that the learned Judge who has left this Court happened to have been the Judge deciding the case, is wholly immaterial. The powers of the Judges of this Court are of co-ordinate jurisdiction and what one Judge has done, if it is a matter which can be undone by a review or amendment, can be undone by another Judge. If the decree has been erroneously drawn up and if it bears the interpretation which the respondents seek to put on it, although it is a matter on which I have already expressed an opinion that it is not so, there are powers of the Court hearing this appeal to make the necessary amendments which ought to be made if the decree is wrong, and to my mind on that ground also this appeal ought to be allowed. The matter ought to be put in the position in which it was left as regards the removal of these buildings when the appeal was withdrawn from this Court. This is a matter which was dealt with by this Court, and it ought to be put in the form and in accordance with the decision of this Court, the appellant being subjected to payment of such costs as are proper for his negligence. On both these grounds I think this appeal ought to be allowed.
8. In consequence of difference of opinion in this Court this appeal must fail and it is accordingly dismissed with costs.