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Narayandas Jawaharmal and ors. Vs. Vishnu Ganesh Namjoshi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Civil Appeal No. 51 of 1961
Judge
Reported inAIR1963MP158; 1962MPLJ298
ActsCode of Civil Procedure (CPC) , 1908 - Sections 152
AppellantNarayandas Jawaharmal and ors.
RespondentVishnu Ganesh Namjoshi
Appellant AdvocateG.M. Chafekar, Adv.
Respondent AdvocateSaxena, Adv.
DispositionPetition allowed
Cases ReferredKhudu Mahto v. Bhim Mahto
Excerpt:
- - saxena contends that the correction cannot now be made as the court should be taken to be functus officio by reason of the fact that the decree which is sought to be amended has been fully satisfied. , went a step further and held that when a decree for money had been finally satisfied and discharged the court is functus officio and can no longer entertain an application for amendment of the decree under section 152 c. ordinarily, therefore, it would not be proper to curtail the wide meaning of this expression laying down the artificial time limit namely the time when the decree as it stood, is satisfied......of the supreme court were under consideration. that rule is identical with section 152 of the civil procedure code. sir john beaumont delivering the judgment of the board in that case stated the law on the subject in the following words:'the general rule is clear that once an order is passed and entered or otherwise perfected in accordance with the practice of the court, the court which passed the order is 'functus officio' and cannot set aside or alter the order however wrong it may appear to be. that can only be done on appeal. section 189, civil p. c. of ceylon which embodies the provisions of order 28 rule 11, english rules of the supreme court (same as section 152, code of civil procedure of india) and the inherent jurisdiction vested in every court to ensure that its order.....
Judgment:

V.R. Newaskar, J.

1. This is an application under Section 152 or the Civil Procedure Code for amendment of the decree in Civil Second Appeal No. 4 of 1957 passed on 23-4-1959. The correction is sought on the ground of clerical error in the decree of the trial Court which has persisted in the decree in the aforesaid second appeal, in the decree of the trial court the date of the decision of the Rent Controller's court is mentioned to be 22-12-1953 factually it was not 22-12-1953 but it was 22-12-1952. This was not disputed. However the learned counsel for the opponent Mr. Saxena contends that the correction cannot now be made as the court should be taken to be functus officio by reason of the fact that the decree which is sought to be amended has been fully satisfied. He relies upon the decision, reported in Pitam Lal v. Balwant Singh, AIR 1925 All 556 and Munnuswami v. Hussain Khan Sahib, AIR 1926 Mad 516 in support of his contention.

2. Mr. Chafekar, who appears for the applicant, however says that although the earlier Allahabad decision in AIR 1925 All 556 has taken that view a different note is sounded in a later decision of the Allahabad High Court in Bechelal v. Hem Singh, AIR 1953 All 485. Moreover it is urged that there is nothing to show that the court has become functus officio by reason of the entry on the face of the decree regarding its satisfaction.

3. In AIR 1925 All 556, an application for amendment of a decree was sought. Sulaiman J., who constituted the Bench, held that the lower court was in error in holding that for the exercise of the powers under Section 152 C. P. C, the court has no option and that in every case it is bound to exercise that power. This view, according to the learned Judge, was not correct and that it was open for him to refuse amendment if the circumstances justified this. Daniels, J., besides concurring with the above decision of Sulaiman, J., went a step further and held that when a decree for money had been finally satisfied and discharged the court is functus officio and can no longer entertain an application for amendment of the decree under Section 152 C. P. C. It seems from this decision that that was the view entertained by Daniels J., alone and was not the opinion of the Division Bench. In the later Allahabad case reported in AIR 1953 All 485, this view expressed by Daniels J. in AIR 1925 All 556, is not followed. The learned Judge Agarwala J., who delivered the judgment, relied upon the decision of the Privy Council reported in Piraratna Unnanse v. Wahareke Sonut-tara Unnanse, 1950 All LJ 587 (PC). That was a case from Ceylon and the provisions of Order 28 Rule. 11 of the English Rules of the Supreme Court were under consideration. That Rule is identical with Section 152 of the Civil Procedure Code. Sir John Beaumont delivering the judgment of the Board in that case stated the law on the subject in the following words:

'The general rule is clear that once an order Is passed and entered or otherwise perfected in accordance with the practice of the court, the court which passed the order is 'functus officio' and cannot set aside or alter the order however wrong it may appear to be. That can only be done on appeal. Section 189, Civil P. C. of Ceylon which embodies the provisions of Order 28 Rule 11, English Rules of the Supreme Court (same as Section 152, Code of Civil Procedure of India) and the inherent jurisdiction vested in every court to ensure that its order carries into effect the decision at which it arrived, provides an exception to the general rule, but it is an exception within a narrow compass.'

4. The learned Judge Agarwala J., further relied upon mother English decision, in Hatton v. Harris reported in(1892) AC 547, in which Lord Watson had enunciated the following principle:--

'When an error of that kind has been committed it is always within the competency of the court, if nothing has intervened which would render it inexpedient or inequitable to do so, to correct the record in order to bring it into harmony with the order which the judge obviously meant to pronounce.'

5. It is clear from these weighty observations ot the Privy Council that Section 152, Code of Civil Procedure is exception to the general rule that when once an order is passed and entered of otherwise perfected the court which passed the order becomes functus officio and that Court has always inherent jurisdiction to correct an error as mentioned in Section 152, Code of Civil Procedure unless the circumstances be such that the court feels it inexpedient and inequitable to do so. Such a thing may happen when rights of third parties intervene as a result of the existence of the decree in a particular form and in ignorance of any circumstances which would show to such third party that it was erroneous.

6. It is clear from the terms of Section 152, code of Civil Procedure that the legislature has fixed no time limit for the exercise of this power. The Section specifically mentions that mistakes such as are mentioned in that Section can be corrected at any time. Ordinarily, therefore, it would not be proper to curtail the wide meaning of this expression laying down the artificial time limit namely the time when the decree as it stood, is satisfied. It is no doubt open for the court not to exercise the discretionary power mentioned in Section 152, Code of Civil Procedure for considerations such as are mentioned above such as of expediency or equity,

7. In the decision in AIR 1926 Mad 516, Spencer J., referred to the observations of Daniels J., in the above referred Allahabad decision (AIR 1925 All 556) and has further noted that the view expressed by the learned Judge did not appear to be correct. The learned Judges of the Patna High Court in the case reported in Sheo Presad Rai v. Dharam Sen Rai, AIR 1919 Pat 141, observed:

'That the dictum to the effect that where a decree had been completely executed the court executing the decree is functus officio has not found complete favour in subsequent decisions.'

Spencer J., it appears, felt bound to follow the earlier Madras decision in Patham Bi v. Mytheen Bibi, (1902) 12 Mad LJ 96.

8. The decision in Khudu Mahto v. Bhim Mahto, AIR 1950 Pat 183, also takes a view in line with the later Allahabad decision AIR 1953 All 485. It was observed in that case that the fact that the decree has been executed is of no importance so far as the question as to whether the amendment prayed should be allowed or not is concerned. That was a case of a mistake covered by Section 152, Code of Civil Procedure.

9. I would, therefore, allow the petition and direct the amendment to be made as prayed for.

10. No order as to costs.


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