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Mohammad Akbar Khan and ors. Vs. Kallan Khan - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1917All417(2); 42Ind.Cas.970
AppellantMohammad Akbar Khan and ors.
RespondentKallan Khan
Excerpt:
civil procedure code (act v of 1908), section 152 - amendment of decree--decree of district judge--appeal to high court--application for amendment--court, proper. - .....there was a decree against the judgment-debtors who had not appealed. the high court postponed the disposal of that appeal so as to allow the decree-holders an opportunity of taking the necessary steps to get the decree altered. thereupon the judgment-debtors made an application to the district judge to amend ,his decree, apparently under section 152 of the code of civil procedure. the learned district judge amended the decree and made a decree dismissing the suit against all persons. the present application in revision is against this order and is based on the ground, first, that the district judge ought not to have amended the decree (which was in conformity with the judgment), 'and secondly, that if the decree was to be amended at all, the application should have been made to the.....
Judgment:

1. This application arises under the following circumstances. The applicants in the present matter brought a suit against a number of persons, claiming that certain property was wakf and asking for a declaration to that effect and for demolition of certain constructions. The Court of First Instance decreed the plaintiff's claim. Certain of the defendants appealed and some of them did not. The appeal coming before the District Judge, he allowed the appeal and dismissed the suit as against the appellants. A second appeal was preferred to the High Court, which confirmed the decision of the District Judge and dismissed the appeal. Subsequently the present applicants as decree-holders applied for execution against those defendants who had not appealed. These judgment-debtors objected to the execution, on the ground that the suit had been dismissed even as1 against them. The Court of First Instance disallowed the objection and ordered execution. On appeal to the District Judge the decision of the Court of First Instance was overruled. Thereupon a second appeal was preferred to the High Court, who intimated that until the decree which had teen passed in the suit was altered so as to make it a dismissal against all the defendants, there was a decree against the judgment-debtors who had not appealed. The High Court postponed the disposal of that appeal so as to allow the decree-holders an opportunity of taking the necessary steps to get the decree altered. Thereupon the judgment-debtors made an application to the District Judge to amend ,his decree, apparently under Section 152 of the Code of Civil Procedure. The learned District Judge amended the decree and made a decree dismissing the suit against all persons. The present application in revision is against this order and is based on the ground, first, that the District Judge ought not to have amended the decree (which was in conformity with the judgment), 'and secondly, that if the decree was to be amended at all, the application should have been made to the High Court who had passed the final decree in the suit. We think that this latter ground has force. We say nothing at present about the first ground. It is quite clear that if any steps are to be taken to alter the decree, application must be made to the High Court and not to the District Judge. We accordingly allow the application and set aside the order of the learned District Judge with costs


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