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Tarsem Singh Major and ors. Vs. Sm. Jagindro and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 422 of 1956
Judge
Reported inAIR1959P& H88
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(2) and 152 - Order 20, Rule 6
AppellantTarsem Singh Major and ors.
RespondentSm. Jagindro and ors.
Appellant Advocate H.S. Gujral, Adv.
Respondent Advocate Y.P. Gandhi, Adv.
DispositionPetition allowed
Cases ReferredTribeni Singh v. Moharned Musharaff Ali
Excerpt:
.....on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept..........:'this appeal coming on for hearing on the 3rd day of april, 1954 before me (shri jagdish narain kapur, district judge, hoshiarpur) in the presence of ............... .it is ordered that the appeal be dismissed and the judgment and decree of the lower court, dated 18-1-1954, by which he granted a decree in favour of the plaintiff-respondent against the defendants-appellants for the declaration as prayed is affirmed.'no mention was made in the body of the decree that the order of the trial court had been upheld on one ground only, namely that jogindro had not been afforded an opportunity of being heard.4. as this decree did not conform to the judgment intended to be enforced by it, the defendants requested mr. p. d. shanna (who had succeeded mr. j. n. kapur as district judge of.....
Judgment:

A.N. Bhandari, C.J.

1. This petition raises the question whether the learned District Judge was justified in dismissing an application for the amendment of a decree.

2. The allotment of a plot of land in favour of one Shrimati Jogindro, a displaced person from the West Punjab, was cancelled by the Custodian of Evacuee Property on the ground that the allottee had left no land in Pakistan on the basis of which the allotment could have been made.

Jogindro challenged the correctness of this decision by means of an action in a Court of law & claimed relief on two grounds, namely (1) that she was aw owner of a plot of land situate in Pakistan, and (2) that the allotment was cancelled without her being afforded a reasonable opportunity of being heard. The trial Court found in favour of the plaintiff and granted her the decree prayed for. The learned District Judge, Mr. I. N. Kapur, to whom an appeal was preferred refrained from deciding whether the land in Pakistan belonged to the plaintiff or to the defendants, for this question had to be decided by the Custodian of Evacuee Property and not by a civil Court.

He held, however, that as no notice was served on the plaintiff before the order of cancellation was made, the order of cancellation could not be supported. In this view of the case he upheld the order of the trial Court and dismissed the appeal. In paragraph 4 of his order he observed as follows :

'Now the learned Senior Subordinate Judge held that no notice was served on the plaintiff respondentand as such the Rahibilitation Department had no right to cancel the allotment. It is on the basis of his finding that a decree was granted to the plaintiff. . ....................'

The concluding paragraph of his judgment runs as follows :

'I accordingly dismiss this appeal and uphold the Judgment and decree of the learned Senior Subordinate Judge. The effect of this will be that the parties will have to go again before the Custodian and have the matter settled between themselves as to whether the land should be allotted to the appellant-defendants or to the plaintiff-respondent-......'

3. The office of the District Judge thereupon drew up a decree which was in the following terms :

'This appeal coming on for hearing on the 3rd day of April, 1954 before me (Shri Jagdish Narain Kapur, District Judge, Hoshiarpur) in the presence of ............... .it is ordered that the appeal be dismissed and the judgment and decree of the lower Court, dated 18-1-1954, by which he granted a decree in favour of the plaintiff-respondent against the defendants-appellants for the declaration as prayed is affirmed.'

No mention was made in the body of the decree that the order of the trial Court had been upheld on one ground only, namely that Jogindro had not been afforded an opportunity of being heard.

4. As this decree did not conform to the judgment intended to be enforced by it, the defendants requested Mr. P. D. Shanna (who had succeeded Mr. J. N. Kapur as District Judge of Hoshiarpur) to amend the decree under the provisions of Sections 151 and 152 of the Code of Civil Procedure and to bring it into accord with the judgment delivered by his predecessor. Mr. Sharma was unable to accede to this request as he was of the opinion that the decree was in accordance with the judgment of Mr. Kapur. The defendants have now come to this Court in revision.

5. Section 2 of the Code of Civil Procedure declares that the expression 'decree' shall mean the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. It is a formal document which must be drawn up in accordance with some decision of a Court, for a finding in itself is not a decree, Mt. Chauli v. Mr. Meghoo, AIR 1945 All 268 (FB).

If it is drawn up in conformity with the judgment, the Court has no power to order its amendment, Ram Parshad v. Jauhri Mal, AIR 1927 Lah 408; Nirendra Chandra v. Digendra Nath, AIR 1926 Cal 1100; but if it is not in harmony with the judgment, the Court has no alternative but to rectify the mistake which has been committed. The object of allowing amendments is to provide a remedy for casual omission or negligence of ministerial officers of the Court in preparing decrees of Courts even though they bear the signatures of the presiding officers concerned.

An amendment is allowed on the assumption that the Court or the officer of the Court, who wad charged with the preparation of the decree, has disregarded the law and the presumed order of the Court by issuing a decree which does not conform to the judgment or is defective in some oilier respect. As the power to amend is exercised for the promotion of justice, it should be exercised liberally so as to make the decree conform to the judgment on which it is founded.

In exercising the power the Court does no more than what would have been done by it or the officer concerned, had the Court or the said officer performed his original duty. Amendment will not be allowedif it is not in the furtherance of justice. As the object of an amendment is to harmonise the decree with the judgment sought to be enforced by it, the test for deciding whether an amendment should be allowed is whether the decree represents the intention of the Judge who made it, Tribeni Singh v. Moharned Musharaff Ali, AIR 1931 Oudh 422, In re Raj Bahadur Singh, AIR 1942 Oudh 226.

6. After a careful consideration of all the facts and circumstances of the case I entertain no doubt in my mind that Mr. Kapur did not intend to affirm the decree of the trial Court in so far as the title to the land in Pakistan was concerned. He intended merely to uphold the decision of the trial Court only on the question of want of notice to the plaintiff before the order of cancellation was made.

He omitted, however, to give effect to this intention, for he appears to have been under the erroneous impression that the learned Subordinate Judge had decreed the plaintiffs claim on the ground only that the order or cancellation was passed without hearing the plaintiff. I am of the opinion that the decree which was prepared in his office did not give effect to his intention even if it purports to have been signed by him. Let the decree be modified accordingly.

7. Nothing herein contained should be construed to be an expression of opinion on the somewhat difficult question as to whether the plaintiff did or did not own any land in Pakistan in lieu of which she claimed an allotment under the provisions of the Administration of Evacuee Property Act. The question of title was not decided by the District Judge.

8. For these reasons I would accept the petition, set aside the order of Mr. Sharma and direct that the decree be amended so as to bring it into conformity with the decision of Mr. Kapur. There will be no orders as to costs.


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