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Mst. Kainta Meherani Vs. Damru Meher and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 169 of 1962
Judge
Reported inAIR1964Ori94; 30(1964)CLT386
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(12), 12(1), 115, 151 and 152 - Order 20, Rules 12 and 18 - Order 33, Rule 8 - Order 47, Rule 1; Court-fees Act, 1870 - Sections 11; Orissa Court-fees Act
AppellantMst. Kainta Meherani
RespondentDamru Meher and ors.
Appellant AdvocateH. Sen, Adv.
Respondent AdvocateR.K. Monapatra, Adv. Opposite Parties 2 and 3
DispositionRevision allowed
Cases ReferredUrban Bank Ltd v. (sic) Dassya
Excerpt:
.....orders were therefore clearly illegal and without jurisdiction. sen are clearly distinguishable. ' this decision is not a well considered one and has noi taken into consideration the provisions of order 33, rule 8 c. air 1943 mad 177 is clearly distinguishable. (sic) dassya, air 1936 cal 752. i am satisfied that no court-fee is leviable on an application for review of the judgment or the decree by a person who has been permitted to sue as a pauper. by the order dated 25-4-1962, the learned that court meant to say that it had no jurisdiction to review the order dated 22-12-1961. it thus failed to exercise a jurisdiction vested in it for revfew of such an order, and the order dated 25-4-1962 can be revised under section 115(b), c......this view, the order declaring the plaintiff toreceive rs. 1050/- from the defendant towards the mesneprofits is strictly speaking an order decreeing the specificamount of rs. 1050/- on adjustment of accounts and equities between the co-sharers. 4. section 11 of the court-tees act, 18/0 after orissaamendment, may be quoted.'procedure in suits for mesne profits or account wnen amount decreed exceeds amount claimed :in suits for mesne profits or for immovable propertyand mesne profits, or for an account, if the protits or amount decreed are or is in excess of the profits claimed or the amount at which the plaintiff valued the relief sougm, the decree shall not be executed until the difference between the fee actually paid and the fee which would have been payable had the suit comprised.....
Judgment:

G. K. Misra, J.

1. Plaintitf is the petitioner. She was permitted to file the suit as a pauper. She obtained a preliminary decree for partition. In course of the final decree proceedings, she filed a petition for taking accounts of the mesne prows., By an order dated 13-12-1961, the learned Munsif new-

'Therefore the plaintiff is entitled to receive Rs. 1050/-from the defendant towards the mesne protits tor seven years in respect of her share. Plaintiff to pay the C. F. payable on the mesne profits by 18-12-1961.'

The court-fee as directed was not paid, on 22-12-1951. the learned trial Court passed an order to the effect--

'Since the plaintiff did not pay court-tee payable on. the mesne profits, there can be no decree in respect on the mesne profits.....The decree be made final.....On 11-1-1962 the final decree was sealed and signed, are 1-2-1962 the plaintiff filed an application to recall the order dated 23-12-1961. But this application was rejected on 12-2-1962 as no order had been passed on 13-12-1961. It may be incidentally noted that the learned Munsif should not have rejected this application taking a technical view that no order had been passed on the 23rd which was obviously a mistake for 22nd. On 15-2-1962, the plaintiff tiled another application for recalling the order dated 22-12-1961. On 16-2-1962, the learned trial court passed an order to the effect.

'Perused the petition. Heard the lawyer. The petition is allowed. The order passed on 22-12-61 is hereby recaned. include the amount of mesne profits in the final decree. The court-fee will be payable by the party after necessary orders.'

The plaintiff filed a petition on 28-2-1962 tor drawing up a fresh final decree in We light of the above order. On 254-1952 the learned trial Court passed an order whereby he recalled the order passed by him on 16-2-1962 on the basis that he cannot correct the order dated 22-12-1961 of his predecessor under Section 151, C. P. C. On 12-5-1961 (1982 ?), the plaintiff filed another petition tor revising the aforesaid order. On 22-6-1962, the learned Munsif heard both the parties and dismissed the petition. The Civil Revision has been filed against the orders dated 25-4-1962.

2. Mr. Sen advanced the following contentions.

(i) The order dated 22-12-1961 refusing to include we claim for mesne protits in the final decree is erroneous on the face of it as no court-fee is payable by the paper plaintiff under order 33 rule S, C.P.C. and unaer Section 11 of the Court-fees Act, 1870 read with Orissa Amendment;

(ii) The order dated 22-12-1961 and the final decree passed on 11-1-1952 could be corrected and reviewed bythe learned trial Court under Sections 151, 152 and order 47, Rule 1 C.P.C., and

(iii) The order passed by the learned trial Court on 16-2-1961 recalling the order dated 22-12-61 was valid analegal and the subsequent order, dated 25-4-1962 recalling the order dated 16-2-1962 and the order dated 22-6-1962 refusing to recall the order dated 25-4-1962 are illegal and without jurisdiction.

3. In his order dated 13-12-1961, Sri C. S. Patnaik, the then learned Munsif, decided that the plaintiff was entitled to receive Rs. 1050/- trom the defendant towards the mesne profits for seven years in respect of her snare and the plaintiff was to pay the court-fee payable on the mesne profits by 18-12-1961. Though the words 'mesne profits' have been throughout used, strictly speaking the claim does not come within the definition of mesne pro-tifs' as defined in Section 2(12), c.P.C. It has not (sic) been finally settled by a Bench decision of this court, reported in Udekar v. Chandra Sekhar, AIR 1961 Orissa 111 that the expression 'mesne profits', as defined in Section 2(12), C.P.C.is restricted only to those profits which are derived by aperson in wrongful possession of property belonging toanother. It has no application! to profits accountable by aperson not in wrongful possession of the property suchas by a co-sharer, before partition. Such a claim toraccounts is not strictly speaking a claim for mesne profitsand the provisions of Order 20, Rule 12 CJP.c. nave noapplication to such claim for accounts. a claim for accountsin a partition suit is implicit in the original suit tor parti-tion by metss and bounds and it ought to be settled atthe time of the preparation of the final decree, if oneof the cosharers is found to be in possession of more thanhis legitimate share of the joint property, the claim foradjustment of accounts should be made and the equitiesbetween the parties is to be adjusted! in. the final decreeitself. On this view, the order declaring the plaintiff toreceive Rs. 1050/- from the defendant towards the mesneprofits is strictly speaking an order decreeing the specificamount of Rs. 1050/- on adjustment of accounts and equities between the co-sharers.

4. Section 11 of the Court-tees Act, 18/0 after OrissaAmendment, may be quoted.

'Procedure in suits for mesne profits or account wnen amount decreed exceeds amount claimed :In suits for mesne profits or for immovable propertyand mesne profits, or for an account, if the protits or amount decreed are or is in excess of the profits claimed or the amount at which the plaintiff valued the relief sougm, the decree shall not be executed until the difference between the fee actually paid and the fee which would have been payable had the suit comprised the whole of the profits or amount so decreed shall have been paid to the proper officer.

ORISSA AMENDMENT

where a decree directs an enquiry as to mesne proms which have accrued on the property during a period prior to the institution of the suit, if the profits ascertained on such enquiry exceeds the profits claimed, no final oecres shall 6e passed till the difference between the fee actuany paid and the fee which would have been payable had the suit comprised the whole of the profits so ascertained is paid. If the additional fee is not paid within such time as the Court shall fix, the claim for the excess shall be dismissed, unless the court, for sufficient cause, extends the time for payment.

Where a decree directs an enquiry as to mesne proms from the institution of the suit and a final decree is passedin accordance with the result of such anquiry, the decree shall not be executed until such fee is paid as would have been payable on the amount claimed in execution if a separate suit had been instituted therefor.'

The section makes a clear distinction between a suit for mesne profits and a suit for accounts. The Orissa Amendment is not applicable to this case as it refers to one covered by Order 20, Rule 12 (1) (c), C.P.C. wnereby the decree itself directs an enquiry as to rent or mesne protiis trom the institution of the suit. This case directly comes within the first part of the section which lays down that the decree can be passed even without payment of court-fee : but the decree shall not be executed until the difference between the fee actually paid and the fee which would have been payable had the suit comprised the whole of the profits or the amount so decreed shall have been paid to the proper officer. I have already said that the decree of Rs. 1050/- in favour of the plaintiff does not come within the definition of mesne profits. In this view of the matter, it was not open to the learned trial Court to refuse to incorporate the claim of Rs. 1050/- in the final decree for non-payment of court-fee. The amount should nave been incorporated; but in view of the section, the decree could not have been executed until the court-tee had been paid. The order dated 13-12-1961 asking the plaintiff to pay court-fee and the order dated 22-12-61 refusing to incorporate Rs. 1050/- in the final decree on account ot nonpayment of the court-fee are illegal.

5. Admittedly the plaintiff was allowed to sue as a pauper. Once the application to sue in forma pauperis is granted, the suit shall proceed in all other respects as a suit in ordinary manner except that the plaintiff snail not be liable to pay any court-tee (other fees payable for service of process) in respect of any petition, appointment of Dleader or other proceeding connected with the suit unaer 0. 33, Rule 8, C. P. C. The proceedings under preliminary decree for accounts to obtain a final decree are proceedings in the suit and are not proceedings in execution -- Mst. vaishno Ditti v. Ml. Rameshrj, AIR 1937 PC 163. wnen final decree proceedings are pending, the Ms had not terminated and it was wholly illegal for the Court to call upon the plaintiff to pay the court-tee on Rs. 1050/-. The aforesaid orders were therefore clearly illegal and without jurisdiction.

6. Question however, arises as to whether the upon is competent to vacate those orders after the final decree had been passed on 11-1-1962. In Kameswar smgh v. Ram Prasad, AIR 1952 pat 478 their Lordships observed.

'If the decree was erroneous, the procedure tor getting the decree vacated was by way of an appeal trom the decree. If there was any error apparent on the tace of the record, the proper procedure was to file an application for review within time. If a fraud was committed which vitiated the decree, it was open to the opposite parties to bring an action on the basis to set aside the decree. If fraud was committed on the Court, the position might have been different and in an appropriate case the Inherent jurisdiction of the Court might be invoked.'

Admittedly no appeal has been filed against the time decree. Mr. Sen contends that the Court had full jurisdiction to correct the order dated 22-12-1961 and tns decree dated 11-1-1962 under Section 152, c.P.C. He places reliance on Puttu Lal v. Sripal Singh, AIR 1937 Oudh 191, Kalidas Rakshit v. Saraswati Dasi, AIR 1943 Cal 1, and Dwarka Prasad v. Jahuri Sah, AIR 1963 Pat 158. Section 152 C.P.C. lays down.

'Clerical or arithmetical mistakes in judgments, be-crees or orders or errors arising therein from any accidentalslip or omission may at any time De corrected by the Court either of its own motion or on the application of any of the parties.'

In this case, there was no clerical or arithmetical mistake or no accidental slip or omission. The Court (Sri. G. S. Patnaikj does not seem to have been aware ot the provisions of Section 11 of the Court-fees Act and Order 33, Rule 8 C.P.C. The decisions cited by Mr. Sen are clearly distinguishable. In those cases in the body of the judgment the views of the Court had been expressed while the ordering portion of the judgment or the decretal order did not correspond to the views expressed in the body-of the judgment In such cases Weir Lordships have held that the omission is merely accidental, in AIR 1963 Pat 158 then lordships held :

'It is obvious that in not giving the plaintiffs say relief in connection with clause (c) of the reliefs, mentioned above, we made an inadvertent omission, although we accepted the agreement put forward by the plaintiffs. There can be no doubt that the judgment in the first appeal dated the 13th May, 1960, as it stands, does not represent the intention of the Court at the time of mak-ing it. The whole tenor of the judgment shows that this particular relief mentioned in clause (c) was in our mind, inasmuch as we quoted the reliefs claimed by the plaintiffs in extenso. It is clear therefore that by an accidental error ws made no reference to Clause (c) of the reliefs claimed, The other decisions ara similarly distinguishable. I am satis-fied that the order D/- 22-12-61 and the decree passed thereon cannot be amended or corrected as being the outcome of clerical or arithmetical mistakes or errors aris-ing out of any accidental slip or omission. Mr. sen's argument on this score must be rejected.

7. The next question for consideration is whether the order dated 22-12-1961 and the decree dated 11-1-1962 could be revised. Order 47, Rule 1, C.P.C. lays down that any person considering himself to be aggrieved by a decree or order from which an. appeal is ailoweo, but from which no appeal has been preferred, and who, on account of some mistake or error apparent on the face of ins record, or for any other sufficient reason, desires to obtain a review of the decree passed of order made against mm, may apply for a review of judgment to the Court which passed the decree or made the order. The limitation for a review application is 90 days from the date ot the decree or order. The application dated 15-2-1962, is within limita-tion.

The mistake committed by the learned Munsif in caning upon the plaintiff to pay the court-tee by overlooking me provisions of Section 11 of the Court-tees Act, is not an error apparent on the face of the record. Whether under Section 11 of the Court-fees Act the plaintiff need not have paid court-fee prior to the passing of the decree is a question which is to be established by long drawn process of reasoning on points where there may conceivably be two opinions. If an error arises by taking one view, such an error cannot be said to be an error apparent on the face of the record. On the other hand, that the pauper plaintiff is not liable to pay court-fee under Order 33, Rule 8, C.P.C. on the sum of Rs. 1050/- is an error apparent on the face of the record and can be reviewed by the learned Munsif under Order 47, Rule 1. As (sic) no appeal had been filed against the order dated 22-12 1961 and the decree dated 11-1-1962, the order passed on 16-2-1962 recalling the order dated 22-12-1961 is within jurisdiction as the Court could review the previous order. If the review application is filed within 90 days, half the court-fee payable on the plaint is leviable. Admittedly,in this case, the plaintiff has not paid the court-fee. Thepauper plaintiff is not to pay any court-fee if urder 33,Rule 8, C.P.C. has application to a review petition. Mr.Mohapatra contends that this lis terminates after thepassing of the decree, and Order 33, Rule 8 has no application to the review of the decree and also of the judgment,after passing of the decree. This contention has no force.The material words in Or. 33, Rule 8, C.P.C. are 'otherproceeding connected with the suit.' Umda Bibi v. NamaBibi, ILR 20 All 410 is a direct case on the point. Inthat case, the Court ordered a decree to be drawn up, withinthree months the plaintiff applied to the Court, substantially, though not formally, for a review of its juagmentand of the decree. The identical objection had been taken.Their Lordships repelled the contention with the observation :

'Now the word 'suit' undoubtedly means the suit in-stituted after permission to sue as a pauper being given.That suit is then to proceed as an ordinary suit under theAct. One of the incidents of such a suit is that a partyaggrieved by a decree or order in that suit may under certain circumstances present an application, for review, mepresentation of such an application is in our opinion a'proceeding connected with the suit.'

The aforesaid decision, lays down the correct law. Mr. Manu-patra cited Nein Yone Ma v. P. D. Patel, AIR 1930 Rang 280. Their Lordships observed therein :

'We have heard her learned advocate who admits that he has been unable to find any case in which permission to apply for review in forma pauperis had been granted.' This decision is not a well considered one and has noi taken into consideration the provisions of Order 33, Rule 8 C.P.C. and the view given in ILR 20 AM 410 which had been in the field. AIR 1943 Mad 177 is clearly distinguishable. As the respondent in the appeal had applied for review, his Lordship was of the view that the principles of Order 33, Rule 8 would not apply. On the contrary, there are observations in the judgment which lend support to the view that I take. The observations are :'It may be possible to support it by liberal consruc-tion of the words 'or other proceeding connected with the suit' used in Order 33, Rule 8 C.P.C. This rule however can exempt a plaintiff only from paying such fees as are mentioned in that rule and cannot possibly be extended to a defendant.'

The view propounded in ILR 20 All 410 was followed in Serajgunj Co-operative Urban Bank Ltd v. (sic) Dassya, AIR 1936 Cal 752. I am satisfied that no court-fee is leviable on an application for review of the judgment or the decree by a person who has been permitted to sue as a pauper.

Under Order 47, Rule 4 (2), Proviso (a), where the Court is of opinion that the application for review should be granted, it shall grant the same, provided that no such application shall be granted without previous notice to the opposite party, to enable him to appear and be heard in support of the decree or order, a review of which is applied for. Admitteflly the opposite parties were not heard on the application dated 15-2-1962 before the order dated 16-2-1962 was passed. The learned trial Court exercised its jurisdiction illegally in reviewing the order dated 23-12-1961 without following the procedure prescribed under Order 47, Rule 4(2), proviso (a). Under Order 43, Rule 1(w), an appeal lies from an order under rule. 4 ,of Order 47 granting an application for review. The opposite parties could have challenged this order as being passed in tneir absence by illegal exercise of jurisdiction, if it had been within their knowledge.

On 28-3-1962, the plaintiff filed a petition tor drawing up a fresn final decree in the light of the order dated 16-2-1962. On 25-4-1962, the learned trial court recalled its order dated 16-2-1962 on the basis that it cannot correct the orders of his predecessor under Section 151, C.P.C. In so doing, the learned trial Court manitestiy took an erroneous view. It had the power to review the order, in tact, it reviewed the order though in the aosence ot the opposite parties. By the order dated 25-4-1962, the learned that Court meant to say that it had no jurisdiction to review the order dated 22-12-1961. It thus failed to exercise a jurisdiction vested in it for revfew of such an order, and the order dated 25-4-1962 can be revised under Section 115(b), C.P.C. The order dated 22-6-1962 refusing to recall the order dated 25-4-1962 is also revisable on the aforesaid principle.

8. The question now arises as to what should be proper order to be passed in revision. I have already said that the orders dated 25-4-1962 and 22-b-1962, passed by the learned Munsif refusing to exercise his jurisdiction in reviewing the order dated 22-12-1961 and the decree dated 11-1-1962 and in exercising jurisdiction in recalling the order D/-16-2-52, are revisable and must be set aside. The proper order should have been to remand the case to the learned trial Court to hear the opposite parties on the question of review. But as the entire matter has been fully argued before me and the point involved is one of pure question of law, no usetul purpose would be served by the remand. In the circumstances it would be sneer waste of time and energy to remand the case. The conclusion arrived at by the trial Court on 16-2-1962 was correct and ft wrongly recalled that order on 25-4-1962. The result Is that the order dated 16-2-1962 would stand and the plaintiff would not be called upon to pay any court-fee on Rs. 1050/- and the said sum would be incorporated in the final decree.

9. The Civil Revision is allowed, but in the circumstances, parties to bear their own costs throughout.


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