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Suba Singh and ors. Vs. Sadhu Singh Chuhar Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 755 of 1961
Judge
Reported inAIR1966P& H518
ActsCode of Civil Procedure (CPC) , 1908 - Sections 96 and 152 - Order 47, Rules 1 and 8
AppellantSuba Singh and ors.
RespondentSadhu Singh Chuhar Singh and anr.
Appellant Advocate N.S. Chhachhi, Adv.
Respondent Advocate A.L. Bahri and; R.N. Narula, Advs.
DispositionAppeal dismissed
Cases ReferredIn Pakkiri Muhammad Rowther v. Swaminatha Mudaliar
Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply.....1. the point for determination in this appeal is whether the lower appellate court rightly declined to entertain an appeal against a decree made by the trial court in a pre-emption suit in which an amendment of correction was later on ordered to be made, the appeal having been filed against the decree as originally framed and not from tke decree as amended or corrected.2. it is necessary to state the facts at some length. mst. jio widow of asa singh sold certain agricultural land measuring 57 kanals and 7 marlas for rs. 10,000 to suba singh and three others. sadhu singh who claimed to be the real brother of asa singh filed a suit for the usual declaration that the sale was without consideration and necessity and was not binding on the plaintiff and other reversionera after the death of.....
Judgment:

1. The point for determination in this appeal is whether the lower appellate Court rightly declined to entertain an appeal against a decree made by the trial Court in a pre-emption suit in which an amendment of correction was later on ordered to be made, the appeal having been filed against the decree as originally framed and not from tke decree as amended or corrected.

2. It is necessary to state the facts at some length. Mst. Jio widow of Asa Singh sold certain agricultural land measuring 57 kanals and 7 marlas for Rs. 10,000 to Suba Singh and three others. Sadhu Singh who claimed to be the real brother of Asa Singh filed a suit for the usual declaration that the sale was without consideration and necessity and was not binding on the plaintiff and other reversionera after the death of Mst. Jio. In the alternative he prayed that a decree be granted for possession by pre-emption on payment of Rs. 3,000 that being alleged to be the market value of the property.

The suit was contested by the vendees and the following issues were framed on the pleadings of the parties :

(1) Is the suit for declaration in view of Section 14 of the Hindu Succession Act by plaintiff competent ?

(2) Has the plaintiff a better right of pre-emption than vendees ?

(3) Was the sale consideration of Rupees 10,000/- actually paid or fixed in good faith?

(4) What is the market value of the suit land?

(5) Is the suit bad for non-joinder of Teja Singh?

(6) Relief.

3. On issue No. 1 it was held that the plain-tiff did not have a locus standi to ask for a declaration after coming into force of th' Hindu Succession Act. On issue No. 2, there was hardly much contest and it was held that the plaintiff had a better right of pre-emption. With regard to issue No. 3 it will be useful to reproduce the following portions of the judg ment of the trial Court:

'13. This is the main issue and the sale consideration of Rs. 10,000/- is said to be paid as follows:

(a) Rs. 4800/- for paying it over to previous mortgagees on the basis of their mortgage deeds dated 12-3-57 (Rs. 1800/-) and 19-12-51 Rs. 3000/- in favour of Teja Singh father of defendants Nos. 1 to 4.

(b) Rs. 600/- for paying it over to Teja Singh on the basis of the pronote dated 2-1-58.

(c) Rs. 600/- for paying over to Dharam Singh vide pronote dated 2-12-57.

(d) Rs. 500/- for paying over to Shangara Singh vide pronote dated 20-6-56.

(e) Rs. 2000/- paid as earnest money videreceipt dated 27-1-58.

(f) Rs. 1000/- paid to the vendor vide receipt D. 11 dated July, 1958.

(g) Rs. 500/- paid to vendor for registration expenses.

Total: Rs. 10,000/-.

14. There is not much dispute as regards items (a) and (f). This amount has been actually proved to have been paid vide receipts and the statement of Jio. These items are upheld.' The trial Court held on items (b), (c), (d) and (e) that they had not been proved and therefore they were disallowed. As a Commissioner had been appointed for determining the market value the trial Court accepted his report and fixed the market value at Rupees 6451.87 paisas.

The concluding and the material portion of the judgment delivered on 11th February, 1960, by Shri S.C. Jain, Sub Judge 1st Class, who had tried the suit was as follows:

'In view of my above findings I decree the plaintiff's suit against the defendants and he will deposit Rs. 6451.87 NP. in this Court on or before 11-5-60 failing which his suit shall stand dismissed ipso facto with costs.'

4. On 3rd March 1960 the plaintiff filed an application which was headed as one for review of the order and the decree dated 11th February, 1960, and the provision under which it was filed was stated to be Order 47, Civil Procedure Code. In this application it was stated that out of the sale consideration the vendees had retained Rs. 4800/- for payment to Teja Singh the mortgagee and since that amount had not been paid to the mortgagee it had to be deducted out of the amount of Rs. 6451.87 paisas which had been determined to be the pre-emption money, and, therefore, the judgment and decree should be reviewed and they should be corrected by inserting that a sum of Rs. 1651.87 paisas only was payable by the plaintiff.

The Ahalmad made a report dated 7th March, 1960, in which he said that since the amount of Rs. 4800/- was lying in trust for payment to the mortgagee there was no question of the amount of Rs. 4800/- being deposited in Court and thus only Rs. 1651.87 had to be deposited by the plaintiff for the purpose of the pre-emption decree. The Court made an order on that day directing a notice to the opposite party for 16th March 1960. The vendees who were apparently unaware of the aforesaid review application instituted an appeal in the Court of the District Judge on 8th March, 1960, in which copies of the judgment as delivered on 11th February, 1960, and the decree as framed pursuant to that judgment were filed. In the review application the Court ordered on 16th March, 1960, that the matter should come up on 30th March, 1960. It appears that the hearing of the application was postponed on certain dates which need not be mentioned.

On 16th April, 1960, the vendees filed a reply in Urdu in which it was stated.

' 'Darkhast Qatai Ghalat Aur Khilaf-i-Waqiaat Hai. Hukam Adalat Main Koi Ghalli Qitabat Nehin Hai Aur Na Hi Badiul-Nazar Main Is Main Koi Ghalti Hai.'

Translation into English would mean.

'The contents of the application are absolutely wrong and against the facts. There is no error of writing (literal translation) in the order passed by the Court, nor is there any apparent mistake in it.'

It was further pleaded that the judgment of the Court was based on facts and could not be reviewed and the plaintiff could file an appeal.

5. Shri S.C. Jain had been transferred by then and his successor Shri D.C. Aggarwal recorded an order on 3rd May, 1960, the material part of which is reproduced below:

'The plaintiff-applicant has applied that a sum of Rs. 4800/- kept in trust with the vendees for payment to Teja Singh mortgagee has not been paid up by the defendant-vendees. The mortgage deeds in favour of Teja Singh son of Jowala Singh in consideration of Rs. 4800/- are Exs. D. 2 dated 19-12-51 and D. 3 dated 21-3-57. I have read the statement of Suba Singh vendee. He says that the sum of Rs. 4800/- has not yet been paid up. The order of the learned Sub Judge reflects a mistake which is quite apparent from the record and it seems that the mistake was committed by inadvertence. The order is reviewable by me even though I am only a successor of Shri S.C. Jain since a notice according to Order 47 Rule 4, Civil Procedure Code, had been issued by him to the other party. The learned counsel for the respondent has nothing to say as to why the application should not be granted. Consequently, the order dated 11-2-60 is reviewed and the plaintiff is ordered to deposit a sum of Rs. 1651.87 by the date already fixed on the condition that the property in his hand will remain subject to mortgage with Teja Singh for Rs. 4800/-.'

As a result of this order the following note was inserted:

'Note. 'The order dated 11-2-60 is reviewed and the plaintiff is ordered to deposit a sum of Rs. 1651.87 N.P. by the date fixed on the condition that the property in his hand will remain subject to mortgage with Teja Singh for Rs. 4800/-'.

This note was signed by Shri D.C. Aggarwal the date under the signatures being 3rd May, 1960.

6. The appeal which had been instituted by the vendees on 8th March, 1960, came up for hearing before the Second Additional District Judge, Amritsar, who by his order dated 1st February, 1961, dismissed it, on the ground that after the order of review the original judgment and decree had ceased to exist and therefore the appeal which had been filed could not be entertained.

7. When the matter came up before me sitting singly a number of authorities were cited some of which have been mentioned in my referring order and as there was a conflict of judicial opinion on the point I directed that it should be disposed of by a Division Bench and that is how the appeal has now come up before us for hearing.

8. The argument which has been presented by Mr. N.S. Chhachhi who appears for the vendees is that although the application which was filed by the plaintiff on 3rd March, 1960, was labelled as one having been made under Order 47, Civil Procedure Code, for review of the judgment and the decree which had been passed by Shri S.C. Jain on 11th February, 1960, it should be treated as an application under Section 152 of the Code of Civil Procedure, as there was only a clerical mistake in the judgment and the decree which arose from an accidental slip or omission and it could be corrected by the Court either of its own motion or on the application of any of the parties. It is submitted that in any case if the matter fell strictly under Section 152 of the Code of Civil Procedure, then the order of Shri D.C. Aggarwal dated 3rd May 1960 should be deemed to have been made under Section 152 and not under Order 47 of the Code.

It has been pointed out that Shri S.C. Jain in his judgment while giving his decision on issue No. 3 the material portion of which has been set out earlier clearly mentioned that the amount of Rs. 4800/- had been retained by the vendees for payment to the previous mortgagee and it was also stated in para 14 of the judgment that there was hardly any dispute with regard to that item and the same was upheld. If that was so, it is said, that while mentioning the figure which was to be deposited by the plaintiff as the preemption money Shri Jain by sheer accidental slip or omission gave the total figure as Rupees 6451.87 and not Rs. 1651.87 after deducting the aforesaid amount of Rs. 4800/-. The amendment which was later on made was merely a correction by the Court of its own error which was clerical and there was no question of any review of the judgment being made under Order, 47, Civil Procedure Code.

9. The position taken up on behalf of the plaintiff by Mr. A. L. Bahri is that the order of Shri D.C. Aggarwal was made on review in accordance with the provisions contained in Order 47 and therefore the original judgment and the decree stood superseded by the amended judgment and the amended decree against which alone an appeal could have been filed. It is also urged that even if it be assumed that the amendment could be made in exercise of the powers conferred by Section 152 of the Code of Civil Procedure nevertheless the judgment and the decree which could be appealed from were only those which came into existence after the amendment or correction.

The earliest case which has been cited is a decision of White and Maclean JJ. in Joyki-shen Mookerjee v. Alaoor Rohoman, (1881) ILR 6 Cal 22. In that case the Subordinate Judge corrected the judgment and the decree regarding costs only. The matter was taken up in appeal to the District Judge. He treated the order of the Sub-Judge as one rejecting the application for a review, and therefore as giving the appellants no fresh point of departure as regards the period of limitation. In other words he read the order of Sub-Judge-as one substantially rejecting the application for a review and allowing what was considered to be a clerical mistake to be amended.

The learned Calcutta Judges were of the view that although the petition was allowed on a minor ground but the application which was one for a review, was not the less for grant of the review, because it was allowed on one-ground only and that a comparatively insignificant one. Referring to the argument that the . mistake in the original decree was such as the Subordinate Judge might have amended under Section 206 of the Code (equivalent to the present Section 152) without granting a review of his judgment, it was said that the Subordinate Judge had not in point of fact proceeded under that section but had dealt with the application as it was one for a review of judgment. It was, therefore, held that the appellants were entitled to have the benefit which the procedure adopted by the Subordinate Judge gave them and to treat the order as made upon review of judgment.

In the next case Brojo Lal Rai v. Tara Prasanna, (1906) 3 Cal LJ 188, the judgment was delivered by Rampini and Mookerjee JJ. and what had happened in that case was that the Subordinate Judge had delivered a judgment on 31st January, 1901, in a mortgage suit. The decree was drawn up on 28th February, 1901. On 28th September, the decree was made absolute. On 3rd June 1902, an application was presented by the defendant for amendment of the decree upon the allegation that the decree was incorrectly drawn up and was not in accordance with the judgment. On 12th July, 1902, the decree was directed to be amended and on 3rd September, 1902, the plaintiff preferred an appeal before the High Court against the amended decree. It was held that the appeal against the amended decree was perfectly competent but so far as the limitation was concerned the decree though it was amended on 12th July 1902 must be taken to bear the date 31st January 1901 as under Section 205 of the Code as it stood then the decree-in a suit must bear the same date on which the judgment was pronounced.

Reference 'was made to Pydel v. Chathappan, (1891) ILR 14 Mad 150, where the learn ed Judges pointed out that in the contemplation of law, an amended decree must be taken as in force from the date of the original decree,as there is a well-founded distinction between a case of amendment and a case of novation or substitution. The learned Judges furtherwere of the opinion that though the appeal wasfiled after the period of limitation it ought tobe admitted in exercise of the powers conferredunder Section 5, para 2, of the LimitationAct. Reference in this case was made to theearlier decision in. (1881) ILR 6 Cal 22 andthat decision seems to have been taken assupporting the view expressed in (1891) ILR 14Mad 150.

10. In Aditya Kumar v. Abinash Chandra, AIR 1931 Cal. 323, it was held that if a decree is modified in review, to however slight an extent it may be, the modified decree is the final decree for the purpose of an appeal and the fact that no decree is drawn up or that a decree was drawn up to the extent of the modification does not affect the question. Consequently an appeal against a decree anterior to review filed pending the review, without any appeal from the amended decree, is not competent. In this case reference was made to the decision in (1881) ILR 6 Cal 22; (1906) 3 Cal LJ 188 and (1905) 9 Cal W. N. 605 for the view that even if the decree was amended on account of the clerical mistake, the period for appeal should be reckoned from the time of the amendment and preparation of the decree in pursuance therof. The effect of granting an application for review was also considered, it feeing that the original decree is superseded and no appeal therefore could be filed against She original decree. In AIR 1931 Cal 578 the same view was reiterated.

11. The Allahabad Court held in Kanha-iya Lal v. Baldeo Prasad (1905) I. L. R. 28 All 240, that where an application for review of judgment is granted and the decree was modified in important particulars and a new decree passed the old decree stood entirely superseded. The following observations, however, in that case deserve notice :-

' It is admitted that the application for review and the order passed thereon could not be treated as having been made under Section 206 inasmuch as it was not an application to bring the decree in conformity with the judgment or to amend clerical error.'

The Allahabad decision was followed by the Lahore Chief Court in Basheshar Nath v. Ram Kishan Das, 140 Pun Re 1919 : (AIR 1920 Lah 333 (1)) in which the order recorded was a very short one and all that has been slated is that the application for review had been accepted and the previous decree had been set aside and the case remanded. For that reason it was held that the decree appealed from no longer existed and the appeal against it could not be heard.

Similarly in Nawaz Ali v. Allu, ILR 4 Lah 185 : (AIR 1924 Lah 82), in which (1881) ILR 6 Cal 22 was followed, all that was said that the decree which had been passed had been reviewed and therefore limitation had to be reckoned from the date of the modified decree.

12. In Vadilal v. Fulchand, (1906) ILR 30 Bom 56, Jenkins C. J. delivering the judgment of the Bench indicated the various stages of procedure involved in a petition of review under Section 623 of old Code (Order 47, Rule 1 of the new Code). According to the statement of the law by him the first stage commences with an ex parte application which the Court may either reject at once or may grant a rule calling on the other side to show cause why the matter should not be reviewed. In the second stage the rule may either be admitted or reject-ed and the hearing of the rule may involve to some extent an investigation into the merits.

If the rule is discharged then the case ends. If on the other hand the rule is made absolute, then the third stage is reached. The case is reheard on the merits and may result in a repetition of the former decree or some variation of it. If there is a variation of the decree the whole matter having been re-opened there is a fresh decree.

In that case certain objections in execution of a decree had been made and an application was filed for review of that judgment under Section 623 of the old Code. Notice was issued to the opposite party and the application for review was heard with the result that the Judge after disposing of certain technical objections proceeded to deal with the case on the merits and having done so he rejected the application for review. An appeal was filed against the said order dated 14th September, 1903, and the question was whether the appeal was competent against that order, because the only order from which an appeal could lie was the original order made on 20th December, 1902. It was held that since the application for review had been rejected no appeal would lie from the order dated 14th September, 1903, and the proper procedure would have been to appeal from the order of 20th December, 1902.

13. In Lachmibai v. Doulatram Devidas, AIR 1936 Sind 53, it has been said that where a decree passed against persons who are dead is amended on an application for review and a decree is passed against the legal representatives of the deceased and an appeal is filed against the first decree the test in deciding whether the appeal has been correctly filed is not whether the error or accidental slip to be corrected in the first decree does or does not fall under Section 152 of the Civil Procedure Code but whether for the first decree a second decree is substituted. Where it appears that the first decree has been substituted by a second one, an appeal against the first decree is not competent.

14. In Pakkiri Muhammad Rowther v. Swaminatha Mudaliar, AIR 1938 Mad 573, the Madras Court decided a case in which the facts were these. The plaintiff alleging that he became the purchaser of the suit property sued the defendants for its possession. Their defence was that some amount was due to them and the trial Court over-ruled the plea and gave judgment for the plaintiff. The property was admittedly held in two distinct shares; one by defendant No. 1 and the other by his brother and his son defendants 2 and 3. Defendant No. 1 alone appealed without impleading defendants Nos. 2 and 3. The District Judge reversed the trial Court's judgment and dismissed the suit. The second appeal was taken to the High Court.

Meanwhile the plaintiff applied for review of the District Judge's decree in which one of the grounds taken was that the dismissal of the suit as against the second set of defendants was an error apparent on the face of the record. The learned Judges referred to the observations of Jenkins C. J. in (1906) ILR 30 Bom 56 about the various stages of a review application. The following passage from the judgment of Venkatasubba Rao J. may be usefully reproduced:

'The question that arises is whether the order to be presently referred to, on the review application, was one passed in the second or in the third stage. As already said, the review was based on two grounds. So far as the petition prayed that the order dismissing the suit should be confined to defendant 1 alone, the relief asked for was granted. To this extent, though the Judge purported to act under the review provisions of the Code, he must in trust be deemed to have used his powers under Section 152, C. P. C. Notice was served on defendant 1 only but the order he made affected defendants 2 and 3 prejudicially and it is inconceivable that he would have made it without notice to them under the review chapter. No adverse order can be made under the review Sections without notice to the party affected. On the other hand, the error which was rectified was, as the Judge later realised due to an accidental slip and under Section 152 that could be rectified as a matter of course without notice.'

A good deal of emphasis was laid by the Madras Court on the provisions contained in Order 47, Rule 8, when an application for for review is granted. At that stage the Court has the option either to rehear the case at once or adjourn it to a future date for hearing. But the Court is required, on making the order absolute, to make a note thereof in the register. No note had been made in the case which was being decided by the Madras Court that the review was granted. That was another reason why it was held that the order which had been made by the District Judge was not an order of review but had been made under Section 152 of the Code.

15. As regards the correcting of an error arising from an accidental slip, the learned Madras Judges had no difficulty in holding that such a correction did not bring into existence a fresh decree. Reference was made in this connection to the observations made in (1891) ILR 14 Mad 150 and (1906) 3 Cal LJ 188.

16. It is clear from the above discussion of the case law that the Calcutta Court has gone to the length of laying down that any kind of amendment or correction made in a judgment or decree irrespective of whether it was made on review under Order 47 or under Section 152 brings into existence a fresh judgment or decree and an appeal would be compe-tent only from them. The Allahabad and the Lahore Courts had to deal with cases which were of a different nature and in which it appears that review application had been entertained and allowed. The approach of the Madras Court has been that it will have to be seen whether the procedure laid down by Order 47 for review was followed in a particular case and if it has been followed and an amendment has been ordered as a result of the review proceedings in the judgment or decree an appeal would lie from the amended judgment or decree but if the correction of an error or mistake has been made under Section 152 of the Code then no fresh judgment or decree comes into existence and the appeal would be perfectly competent from the decree as originally passed.

With respect I am inclined to follow the Madras view because in my opinion correction of a mistake or an error under the provisions of Section 152 does not supersede the original judgment or decree. All that the Court does is to rectify a clerical error arising from an accidental slip or omission and it is the duty of the Court to correct it whenever it comes to its notice or is brought to its notice by any of the parties.

In case the intention of the Court is quite clear and if by some clerical error or omission that intention is left in doubt or is not properly effectuated then use can be made of the powers under Section 152 and indeed the Court is bound to correct such errors or mistakes which fall within the ambit of Section 152. The considerations which prevail in entertaining a review petition and directing any amendment in a judgment or decree under the provisions contained in Order 47 are quite different. Where a judgment or decree is amended as a result of proceedings taken under Order 47 a new judgment or decree comes into existence and supersedes the original ones but that cannot be said about any correction or amendment directed or made under Section 152 of the Code.

17. It has now to be decided whether in the present case the judgment and consequently the decree were amended as a result of review proceedings or it should be deemed that the correction which was ordered was done in exercise of the powers conferred under Section 152. As has been stated before the petition was one for review under Order 47. It is not clear whether any note was made in the register under Order 47, Rule 8 that a review was being granted but the tenor of the order of Shri D.C. Aggarwal who was the successor of Shri S.C. Jain is such that it could have been made only under the provisions of Order 47. He took into consideration the statement of Suba Singh vendee that a sum of Rs. 4800/-which had been left in trust for payment to the mortgagees had not yet been paid. He also mentioned in the order that it was reviewable by him even though he was a successor of Shri S.C. Jain since a notice under Order 47, Rule 4 had been issued by Shri Jain himself to the opposite party.

18. There can thus be no manner of doubt that Shri D.C. Aggarwal had looked at the evidence on record of Suba Singh and come to the conclusion that the amount of Rupees 4800/- had not been paid from which it followed that the plaintiff should have been ordered to deposit only a sum of Rs. 1651.87 and not Rs. 6451.87. In the order of Shri Jain there was a mention of the amount of Rs. 4800/-having been kept in trust for payment to the mortgagees and that item was round proved as an item forming part of consideration for the sale but the further fact whether the vendees had paid that amount to the mortgagees or not was not mentioned in the previous judgment. It cannot, therefore, be said that the order of Shri Aggarwal was only one of correcting a clerical error due to an accidental slip or omission under Section 152. In this view of the matter the appeal could be filed only from the decree as amended and the appeal against the original decree was rightly held to be incompetent.

19. As the point was of some difficulty it may still be open to the appellant to file a fresh appeal against the amended decree and pray for extension of time under Section 5 of the Limitation Act if so advised.

20. In the result the appeal fails and is dismissed but in the circumstances of the case the parties are left to bear their own costs throughout.


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