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Union of India (Uoi) Vs. Sudhir Kumar Ray and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Review No. 17 of 1971 in A.H.O. No. 1 of 1971
Judge
Reported inAIR1975Ori64
ActsCode of Civil Procedure (CPC) , 1908 - Sections 152 - Order 47, Rule 1
AppellantUnion of India (Uoi)
RespondentSudhir Kumar Ray and ors.
Appellant AdvocateS. Mohanty and ;K.N. Sinha, Advs.
Respondent AdvocateB.M. Patnaik, ;B.R. Patnaik, ;G.B. Patnaik,;S.P. Raju, ;K.N. Jena, ;M.R. Panda and ;S. Das, Advs.
Cases ReferredJanakirama Iyer v. Nilakanta Iyer
Excerpt:
.....v smt gita banik, 1996 (2) glt 246, are not good law]. - are satisfied is the date when the application for review is filed. failure to argue a point is not an envisagable ground for review under order 47, rule 1, c. it is a well settled principle 'that the appellate order is the operative order after the appeal is disposed of'.the foundation of this principle is that the decree of the lower court merges in the decree of the appellate court, whether the decree of the appellate court reverses or modifies or confirms the decree of the lower court, (vide the case of collector of customs, calcutta v. 'the general proposition is fairly well established that where a decree of the trial court is varied, affirmed or reversed by the appellate court, it is the appellate court alone that can..........to in relief (b) is schedule 'a' to the plaint. this is extracted hereinbelow:-- schedule 'a'leave salary (8) half average pay for 3 days. i. e. 29th 30th and 31st october, 1960 rs. 173.04 n. p. per month.rs. 16.75 npinterest @ 12 % p. a. for one month from 1-11-60 to 30-11-60.rs. 0.21 npleave salary @ half ave-rage pay for the month of november 1960...rs. 173.04 nptotal...rs. 190.00 3. it is clear from the aforesaid extracts from the plaint that the plaintiff never claimed any interest at all on his future salary which would accrue to him since after the month of november, 1960 onwards. 4. the suit was dismissed by the trial court. the plaintiff-opposite party, thereupon, preferred f.a. no. 98 of 1964 which was heard by a single judge of this court and allowed. the appellate court.....
Judgment:

S.K. Ray, J.

1. Two applications have been filed in the aforesaid A.H.O. No. 1 of 1971. One application is under Order 47, Rule 1 read with Section 151 C. P. C, for review of the judgment passed in the aforesaid A. H. O. for the purpose of setting aside part of the decree passed in F.A. No. 98 of 1964 regarding grant of interest on future salary. The other application is one under Section 152 C. P. C. for the identical relief of amendment of the decree in F. A. No. 98 of 1964 which was merged in the appellate decree passed in A. H. O. No. 1 of 1971, in the alternative. Both these applications have been heard together as the relief claimed in them is essentially the same.

2. For appreciating the need of filing the aforesaid two applications it is necessary to recount shortly the back-around litigation. The opp. party No. 1 filed his suit against the petitioner and the other pro forma opposite parties for the following reliefs:

(a) For a declaration that the decision of reversion of the plaintiff as communicated to defendants Nos. 7, 9 and 10 and subsequent intimation to the plaintiff and consequential order of defendant No. 10 posting the plaintiff to Banki is void, inoperative and ultra vires and unconstitutional.

(b) For payment of arrears of pay to the plaintiff by defendant No. 1 with interest at the rate of 12% per annum as per schedule below and also future monthly salary with increment and other benefits as would have been accrued to the plaintiff had the plaintiff not been reverted (for which court-fee will be paid hereafter).

(c) For permanent injunction against defendants Nos. 1, 2. 3 and 6 not to give effect to the said invalid order of reversion.

(d) For payment of damage of Rs. 3/-at the rate of one rupee each to the plain-tiff against defendants Nos. 2. 3 and 4 and a damage of Rs. 300/- by defendant No. 5 or against any other defendant or defendants who may be adjudged liable according to the decision of the Court.

(e) For costs of the suit incurred by the plaintiff against defendant Nos. 1 to 5: and

(f) For any other relief the plaintiff may be entitled to.

(The 'claim for monetary damage against defendants Nos. 2 to 5 as given in notice under Section 80. Civil P. C. has been reduced).

The schedule referred to in relief (b) is Schedule 'A' to the plaint. This is extracted hereinbelow:--

Schedule 'A'Leave salary (8) half average pay for 3 days. i. e. 29th 30th and 31st October, 1960 Rs. 173.04 n. p. per month.Rs. 16.75 nPInterest @ 12 % p. a. for one month from 1-11-60 to 30-11-60.Rs. 0.21 nPLeave salary @ half ave-rage pay for the month of November 1960...Rs. 173.04 nP

Total...Rs. 190.00

3. It is clear from the aforesaid extracts from the plaint that the plaintiff never claimed any interest at all on his future salary which would accrue to him since after the month of November, 1960 onwards.

4. The suit was dismissed by the trial court. The plaintiff-opposite party, thereupon, preferred F.A. No. 98 of 1964 which was heard by a Single Judge of this Court and allowed. The appellate Court in para. 25 of its judgment enumerated the reliefs to which he found the plaintiff to be entitled. The reliefs granted were (to quote the words of the appellate Judge):--

'The order of revision is declared void. The plaintiff must be deemed to be continuing in the post he held when the order of reversion came to be passed and he would be entitled to his salary as claimed excluding Rs. 190/- in Schedule A of the plaint. He would also be entitled to future salary as prayed for on payment of the proper court fee as undertaken by him in paragraph 47 of the plaint. The plaintiff is at liberty to execute the decree for future salary upto date on payment of the proper court-fee. There would be no decree for damages as the plaintiff has not been able to establish his claim of damages. Defendants 1. 2, 3 and 6 are restrained from continuing to give effect to the order of reversion. The plaintiff would be also entitled to his costs here as also in the trial court.'

There is no manner of doubt that the appellate Judge never granted interest far less interest @ 12 P.C.P.A. on the future salary decreed

5. However, the appellate decree drawn up by the ministerial officers of this Court provided, inter alia.

'The plaintiff is further entitled to his future salary upto date from defendant No. 1 with interest at the rate of 12% per annum with increment and other benefits as would have been accrued to the plaintiff had the plaintiff not been reverted.'

This part of the decree is patently not in accord with the judgment. It may he noted that by reason of this error, the plaintiff becomes entitled to a sum of Rs. 17,188.79 paise on account of interest on future salary alone from November. 1964 till the end of September, 1971.

6. The petitioner filed A.H.O. No. 1 of 1971 which was dismissed on 7-10-71 and the decree was drawn up on 9-11-71 by which the decree of the first appellate court was confirmed.

7. It is stated that the aforesaid clerical mistake in the decree drawn up in F.A. No. 98 of 1964 escaped the notice of the petitioner and also of his counsel earlier to the date of disposal of A.H.O. No. 1 of 1971 by a Division Bench of this Court. Subsequently, having discovered the aforesaid error in the decree in F. A. No. 98 of 1964 the petitioner filed the present review application dated 9-11-71 for reviewing the judgment in A.H.O. No. 1 of 1971 and thereby for rectifying the error as to grant of interest on future salary in the decree passed in F A. No. 88 of 1964. This application is registered as Civil Review No. 17 of 1971. Simultaneously the petitioner filed an application under Section 152. C. P. C. before the Single Judge who had heard F.A. No. 98 of 1964, which was registered as M.J.C. No. 98 of 1971 but that case was dismissed on 7-12-71 as not maintainable.

8. While the aforesaid review application was pending, an application for leave to appeal to the Supreme Court was filed on 15-11-71 in this Court which was registered as S.C.A. No. 130 of 1971. This was dismissed on 21-3-72. Thereafter, on 17-7-72 special leave application under Article 136 of the Constitution of India was presented before the Supreme Court which was registered as Special Leave Petition No. 2058 of 1972. Notice of this special leave application was served on O. P. No. 1 on 2-9-72. Ultimately, the special leave application was dismissed on 9-10-72 after hearing counsel for both sides.

9. During pendency of this review application the petitioner has filed another substantive application under Section 152. C.P.C. on 26-3-73 before the appellate Division Bench of this Court to modify the judgment and decree pass-ed in A.H.O. No. I of 1971 by directing that the plaintiff shall not be entitled to any interest on future salary as it fell due from November, 1960 till the date of the judgment of the First Appeal. We construe this application under Section 152. C.P.C. as essentially requiring correction of the decree passed in F.A. No. 98 of 1964 as to grant of interest on future salary as the said decree was confirmed by us in A.H.O. No. 1 of 1971.

10. With regard to the review application, it is contended by Mr. Patnaik, the learned counsel for the opposite party No. 1 that the jurisdiction of the court to hear the review petition has come to an end upon the dismissal of the special leave petition under Article 136 of the Constitution of India by the Supreme Court on 9-10-72. Reliance has been placed on 3 cases. The first is the case of Veluri Sitaramasastry v. Isukapalli Sundaramma, AIR 1966 Andh Pra 173; the second is the case of Shiva Jute Baling Ltd. v. Hindley and Co. Ltd., AIR 1955 SC 464 and the third is the case of Thungabhadra Industries Ltd. v. The Govt. of Andhra Pradesh, AIR 1964 SC 1372. It has been held in Sitarama-sastry's case that presenting an application for leave to appeal to the Supreme Court against the judgment of the High Court amounts in effect to preferring an appeal to the Supreme Court for purposes of Order 47 Rule 1. In the case of Shiva Jute Baling Ltd. it has been held that passing of en order granting special leave on an application presented under Article 136 itself operates as admission of the appeal as soon the conditions of the order relating to furnishing of security or making of a deposit are complied with and it has been held in the case of M/s. Thungabhadra Industries Ltd., that:--

'The crucial date for determining whether or not the terms of Order 47 Rule 1, C.P.C. are satisfied is the date when the application for review is filed. If on that date no appeal has been filed it is competent for the court hearing the petition for review to dispose of the application on the merits notwithstanding the pendency of the appeal, subject only to this, that if before the application for review is finally decided the appeal itself has been disposed of, the jurisdiction of the court hearing the review petition would come to an end.'

On consolidated application of the aforesaid principles it is argued that upon dismissal of the special leave application on 9-10-72 the jurisdiction to hear the review petition has come to end. Sitaramasastry's case is a direct case on the point that filing of a special leave application amounts to preferring an appeal for the purpose of Order 47, Rule I, C. P. C. Accepting this proposition to be correct, review application cannot be filed after presentation of a special leave application. But in the instant case the position was reverse, that is to say, review application was filed before presentation of the special leave petition. Therefore, there could be no lack of jurisdiction in entertaining the review application. This principle, however, is sought to be extended by Mr. Patnaik in contending that dismissal of the special leave application amounts also, in effect, to disposal of the appeal by the Supreme Court in which event, applying the principle in Thungabhadra Industries case, jurisdiction to hear the review application came to an end on 9-10-72 when the special leave application was dismissed. The logic of extending the principle of Sitaramasastry's case to this extent assumes a series of performances to have taken place in the following sequence, by the time review application was taken up for adjudication, namely, that leave was granted; appeal to the Supreme Court was registered and admitted and lastly its final disposal by the Supreme Court. In Shiva Jute Baling Ltd. case, the Supreme Court has said that the order granting special leave by itself would not operate as an admission of the appeal until the conditions of the order relating to furnishing of security or making of a deposit are complied with. Thus, where the special leave application is dismissed, it cannot be treated to be an appeal which has been admitted and disposed of. Article 136 of the Constitution empowering the Supreme Court to grant, in its discretion the special leave to appeal indicates that granting of special leave is a stage which precedes the stage, where an appeal comes into being. Thus the dismissal of a special leave application is not synonymous with disposal of an appeal. Rule 11 of Order 16 of the Supreme Court Rules, 1966 makes the position clear by providing that 'on the grant of special leave, the petition for special leave shall subject to the payment of additional court fee, if any, be treated as the petition of appeal and it shall be registered and numbered as such'. In view of those provisions, an appeal in Supreme Court, does not come into existence until after special leave is granted. Further, court fee has to be paid on the petition for special leave as if it was a memorandum of appeal. I am doubtful if ad valorem court fee on the quantum of interest on future salary which had accumulated to the tune of 17 thousand and odd had been paid. Even assuming that such court fee had been paid, no appeal could be registered and numbered, as such, in view of dismissal of special leave application. In Thungabhadra Industries case, the special leave application was dismissed on ground of delay and in the instant case on merits. In either case, no appeal came legally on the file of the Supreme Court. This also finds support in the following sentence from Shiva Jute Baling Ltd. case 'when however the appeal conies to the Supreme Court, on the strength of a special leave granted by it, the position is different, which, in its turn is based on Supreme Court Rules'. This indicates that the effective jurisdiction of the Supreme Court to deal with an appeal commences only after grant of the special leave. It may be that for the purpose of entertaining an application for review under Order 47, Rule 1 C.P.C., presentation of a special leave application to the Supreme Court is a relevant consideration, but it does not serve the purpose of being treated as an appeal to the Supreme Court before leave is granted. The Supreme Court is not seized of an appeal, as such, at the stage of consideration of special leave application. For the aforesaid reasons, I am of opinion that the jurisdiction to hear the present review application has not been terminated or extinguished.

11. The ground on which the review is sought for is that though the error committed in the drawing up of the decree in F.A. No. 98 of 1964 was known to the counsel for the petitioner but he inadvertently omitted to raise that point at the hearing of A. H. O. No. 1 of 1971. The learned counsel admits that it was an unfortunate omission on his part. Failure to argue a point is not an envisagable ground for review under Order 47, Rule 1, C. P. C. according to which in only three cases mere review is permitted. Those cases are where new material has been over-looked, by excusable misfortune, mistake or there is an error apparent on the face of the record and where there is 'any other sufficient reason'. The present case is not covered by the first two classes of cases. No new material has been over-looked by excusable misfortune or mistake; it is a case of an existing material being over-looked by the counsel and not a case of excusable misfortune nor a mistake. There is also no error apparent on the face of the record. The decree passed in A.H.O. No. 1 of 1971 is one of a affirmance in accord with the judgment, and there is no mistake in the decree passed in A.H.O. No. 1 of 1971 which is apparent on the face of its record. It is only when one goes back to the judgment and decree passed in F. A. No. 98 of 1964 that the error in that decree becomes apparent. So, this ground for review also fails.

The next question is whether the present case will come under the category 'any other sufficient reason.' These words are of general character and would prima facie leave the sufficiency of reason and the unfettered discretion to the Court but the Privy Council has said in the case of Chhajiu Ram v. Neki, 49 Ind App 144= (AIR 1922 PC 112) that 'any other sufficient reason'' means a reason sufficient on grounds at least analogous to those specified in the rule. There does not appear to me to exist any other analogous reason for review. Thus, it is difficult to grant the relief sought for by way of review. Civil Review petition, is, therefore, dismissed, but, in the circumstances, without costs.

12. However, the relief can be granted on the basis of the substantive application under Section 152, C. P. C. Section 152, C. P. C. provides:

'Clerical or arithmetical mistakes in judgments, decrees or orders arising therein from any accidental slip or omission may at any time be corrected by the court either of its own motion or on the application of any of the parties.'

There is no limitation for effecting correction in the decree under Section 152, C. P. C. and delay by itself would be no bar to an application for amendment. Order 20 Rule 6 (1) provides that the decree shall agree with the judgment. Section 2(2) of C.P.C. defines decree as the formal expression of an adjudication which is made in the judgment where reasons are recorded, and therefore, the formal decree drawn up later must be in conformity with the judgment. Decree is generally drawn up by Ministerial officers of the Court which makes the adjudication. The mistakes committed or omissions made by the Ministerial officers of the court in drawing up the decree at variance with the judgment would constitute errors arising therein from accidental slip or omission. Thus granting of interest at 12% p. a. on future salary in the decree is, undoubtedly and patently, not in conformity with the judgment and constitutes a mistake or an error of the nature contemplated in Section 152, C. P. C. and is liable to be corrected. This view receives full support from the Privy Council in 2 cases (Manakchand v. Manoharlal, AIR 1944 PC 46 and Somasundaram Chetty v. Subramanian Chetty, AIR 1926 PC 136) and the principles enunciated by Lindley, L.J. in the case of Swire: Mellor v. Swire (1885) 30 Ch. D. 239 accepted in AIR 1926 PC 136 and in the decision of the Single Judge of this Court in the case of Sagua Barik v. Bichinta Barik, AIR 1966 Ori 225. A proper case has been made out, in my opinion for amendment.

Next question is which court has the jurisdiction to amend the decree in F.A. No. 98 of 1964, passed by Single Judge of this Court. This decree has merged in the decree passed by the appellate Division Bench of this court in A.H.O. No. 1 of 1971 and there was no further appeal from this decree of the Division Bench to the Supreme Court because, as already held, no appeal was registered in that court and disposed of by it. It is a well settled principle 'that the appellate order is the operative order after the appeal is disposed of'. The foundation of this principle is that the decree of the lower court merges in the decree of the appellate court, whether the decree of the appellate court reverses or modifies or confirms the decree of the lower court, (vide the case of Collector of Customs, Calcutta v. East India Commercial Co. Ltd., Calcutta, AIR 1963 S C 1124). This identical principle has also been laid down in the case of Sachindranath Kolya v. Prabodh Chandra Sarkar, AIR 1948 Cal 126, where it has been said; 'the general proposition is fairly well established that where a decree of the trial court is varied, affirmed or reversed by the appellate court, it is the appellate court alone that can amend the decree--vide (1910) 37 Ind App 70 (PC)'. The power and jurisdiction of the appellate court where it is the High Court, to amend the decree does not cease even where appeal from it may have been admitted in the Supreme Court but not disposed of before the date of correction. This has been held in the case of Janakirama Iyer v. Nilakanta Iyer, AIR 1962 SC 633 in the following words:

'Where the decretal order drawn in the High Court as a result of inadvertence and through error introduced the words 'mesne profits' instead of the words 'net profits', the error can be corrected by the High Court under Sections 151 and 152 even though the appeals from the decree may have been admitted in the Supreme Court before the date of correction.'

In view of those principles, it is the appellate Division Bench of High Court which disposed of A.H.O. No. 1 of 1971 which has the power and jurisdiction to amend and rectify the decree in F.A. No. 98 of 1964 by bringing it into accord with judgment rendered in that appeal. We, therefore, direct that the decree in F.A. No. 98 of 1964 be rectified by deleting the following words:--

'With interest at the rate of 12 p. c. p. a.' from the paragraph of the decree as extracted in para 5 above. The effect of this amendment is that the plaintiff will not be entitled to any interest at the rate of 12 p. c. p. a. on his future salary decreed.''

13. In the result, the application for amendment is allowed. In the circumstances of the cases, there will be no order for costs.

Civil Review dismissed but the amendment petition is allowed, both without costs. Decree be amended as directed.

S. Acharya, J.

14. I agree.


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