N.G. Shelat, J.
1. This appeal arises out of an order pissed on 23rd October 1959 by Mr. S.L. Bapat, Third Extra Assistant Judge, Ahmedabad in Civil Appeal No. 175 of 1953 whereby the order passed by the Court of the Civil Judge, (Junior Division) Dholka in Darkhast No. 49 of 1952 came to be set aside and the Darkhast was remanded back to the Lower Court for proceeding further in accordance with law.
2. Bai Monghi, widow of Doongersi Dipchand, the respondent, had filed Civil Suit No. 60 of 1943 against the appellant in the Court of the Civil Judge, (Junior Division) at Dholka, and obtained a decree in her favour on 28th April, 1948. By that decree the deed dated 23rd September 1942 said to have been passed by Bai Monghi in favour of the defendant in the suit was found to be nominal and not binding and that on her paying a sum of Rs. 1762-8-0 to the defendant, she was to get possession of the suit property from the defendant. She was also awarded costs of the suit, and for determination of the future mesne profits, an application was to be made as provided under Order XX Rule 12 of the Code of Civil Procedure. Dissatisfied with that Judgement and decree, passed by the trial Court, the defendant Pragji Ranchhod preferred Civil Appeal No. 108 of 1948 in the Court of the District Judge at Ahmedabad. That appeal was heard by the Third Extra Assistant Judge, Ahmedabad who confirmed the decision of the lower Court and dismissed the appeal on 28th June 1949. Then on 27th June 1949, plaintiff-Bai Monghi filed Regular Darkhast No. 49 of 1952 for execution of the decree obtained by her against the defendant, in the Court of the Civil Judge (Junior Division), Dholka. In that Darkhast, she claimed in all Rs. 239-11-9 which included the costs awarded to her in appeal No. 108 of 1948. With regard to her claim for possession of the suit property, she stated therein that she had made an application for the amendment of the decree in the Court inasmuch as there has been a mistake in respect of a sum of Rs. 200/- in the amount of Rs. 1762-8-0 directed to be paid to the defendant and that she would deposit the amount in Court after the amendment was made or at any other time as directed by the Court. In other words, at that stage, she did not deposit in Court any amount whatever which she was required to deposit to get possession of the property in that proceeding. Later on, on 20-12-1952 she presented an application Ex. 6A before the Court stating inter alia that since it is not possible to know as to how much amount she is required to pay until the application for amendment of the decree is decided by the Court, the Darkhast in so far as it relates to the claim for recovering the amount due on account of costs awarded by both the Courts, may be directed to be proceeded with. In response to that application Ex. 6A, the defendant judgment-debtor submitted his statement Ex. 14 wherein he said that he has to get Rs. 1762-8-0 under the decree and that the amount of Rs. 239-11-9 which the plaintiff decree-holder claims against him may be taken as a set-off against his amount due from her and as the decree-holder has not done so, though informed, the Darkhast was liable to be dismissed.
3. After the appeal No. 108 of 1948 came to be decided by the learned Extra Assistant Judge, Ahmedabad on 28-6-1949 and before the decree could be drawn up by that Court, i. e., on 30-6-1949 Bai Monghi-respondent in that appeal i. e. the original plaintiff-Darkhastdar presented an application Ex. 10 wherein she alleged that since there was a clerical error in the judgment and decree passed by the Lower Court, viz. that the correct amount in place of Rs. 1762-8-0 which she is directed to pay for getting possession of the suit property, should be Rs. 1562-8-0, that mistake may be corrected and the judgment and the decree may be suitably amended by the Court. The learned Advocate appearing for the appellant Pragji Ranchhod objected to the granting of any such prayer by saying that the appellate Court had no jurisdiction to entertain this application under Section 152 of the Code of Civil Procedure, and that the Court of first instance only can amend such a mistake, if any, as the decree was in accordance with the final order in the judgment and the application was, therefore, liable to be dismissed. That application was then heard and the learned appellate Judge passed an order below that application on 7th July 1949. That order runs thus:
As I have already confirmed the order and decree and amendment sought is in the judgment and decree, the applicant can apply to the Lower Court as the error alleged is of the Lower Court, Rejected.
4. That led Bai Monghi to present an application Ex. 130 to the trial Court for the amendment of the judgment and decree presumably under Section 152 of the Civil Procedure Code inter alia alleging that there has been a clerical mistake in the judgment and the decree in writing the sum of Rs. 1762-8-0 when in fact it should be Rs. 1562-8-0 and that such an error was pointed out before the appellate Court and even an application for amending the judgment and decree was made to the appellate Court. However the appellate Court had directed her to file a separate application to the Lower Court. This Application Ex. 130 was presented to the Court on the same day along with the Darkhast on 27th June 1952 i. e. a day before the period of limitation was to expire for the execution of the decree. It was resisted by the other side vide Ex. 140 and the contention raised by the defendant was that this Court i. e. the trial Court had no power to entertain such an application as there was an appeal over the judgment of the trial Court. The learned Civil Judge considered the question as to whether the correction or amendment sought for was in respect of a technical or a clerical mistake and found that 'it was only a clerical mistake in the judgment and decree and for the sake of justice, such a mistake must be corrected by the Court'. He further observed that 'as the correction sought for was technical and as it was a clerical mistake it could be corrected at any time by the Court and no question of limitation arises in such a case'. Thus, he passed a final order saying that 'in the order of the judgment Ex. 128 where there are figures Rs. 1762-8-0 they should be corrected to Rs. 1562-8-0 and in the decree Ex. 129 in the last para where there are figures Rs. 1762-8-0 they should be corrected to Rs. 1562-8-0'. He made no order as to costs. This order was passed on 2nd January 1957.
5. After that order was passed, the plaintiff-decree-holder gave an application Ex. 19 on 29-3-1957 for being allowed to deposit the amount of Rs. 1562-8-0 as per the amended decree and the learned Civil Judge allowed that sum to be deposited in Court subject to the contentions that the parties may have to raise in that respect. In response to this application Ex. 19, the defendant presented his reply Ex. 20 on 16th April 1957 inter alia contending that the application was not maintainable since the plaintiff had not deposited the amount as directed in the decree till 29-3-1957. According to him, she should have deposited the amount at the very time when the Darkhast was filed as per the terms of the decree. He further contended that even though the decree was amended so far back as on 2-1-57, she had not deposited the amount till 29-3-1957 and therefore the Darkhast was not tenable and it was liable to be dismissed. On a consideration of the arguments advanced in the trial Court, the learned Civil Judge found that the plaintiff-decree-holder had failed* to fulfill the condition mentioned in the decree before executing the decree namely of having to deposit a sum of Rs. 1762-8-0 and since the amount has been deposited after the period of limitation was over, that Darkhast was time barred namely on the date when the decree-holder deposited the amount on 29-3-1957, and the Darkhast came to be dismissed. Feeling dissatisfied with that order dated 31st January 1958 passed by Mr. A. K. Pathan, Civil Judge (Junior Division), Dholka, the defendant-judgment-debtor preferred Civil Appeal No. 175 of 1958 in the District Court at Ahmedabad. It was heard by the Third Extra Assistant Judge, Ahmedabad. He, however, allowed the appeal and set aside the order of dismissal of the Darkhast passed by the Trial Court and remanded back to the trial Court for proceeding with the Darkhast further according to law. The respondent was directed to pay the costs of the appeal and bear his own. Aggrieved by that order of 23rd October 1959 passed by Mr. S.L. Bapat, Third Extra Assistant Judge, Ahmedabad, the original defendant judgment-debtor has come in appeal to this Court.
6. Mr. Chhatrapati, the learned Advocate for the appellant raised two points in the main. The first is that the order passed by the trial Court on application Ex. 130 on 2-1-1957 whereby the decree came to be amended was infructuous and without jurisdiction inasmuch as the trial Court had ceased to function by reason of the fact that decree was appealed against and the appellate Court had confirmed the same. In other words, according to him the only Court competent to amend the decree was the appellate Court and in no case the trial Court. Since such an order passed by the trial Court was without jurisdiction, it was a nullity and was not required to be set aside. If, therefore, the effect of that order is removed, the Darkhast filed by the original plaintiff was barred by limitation as it can be said to have been validly filed only when the amount was deposited in Court viz. on 29-3-57. Another point raised by him is that the decree in so far as it directed the appellant to handover possession of the suit property on the respondent paying the certain amount as stated in the decree, was a conditional decree and the payment of that amount was obviously a condition precedent before she can claim to execute the decree for getting possession of the suit property. If such a condition is not fulfilled within three years from the date of the decree, it would be barred by limitation. According to him Article 181 of the Schedule to the Indian Limitation Act would govern such a case and not Article 182. On the other hand it was pointed out by Mr. Shah the learned Advocate for the respondent that it cannot be said that there was inherent lack of jurisdiction in the trial Court in passing the order below Ex. 130 and thereby amending the decree and consequently any such order passed by the Court would not be void or a nullity. Till therefore any such order is set aside by the Court of appeal or in revision, it governs the matter and the parties thereto and the validity thereof cannot be questioned by the appellant in the execution proceedings. In other words, it was said that the executing Court was not competent to look into that question and it has to execute the amended decree as it stands. He further said that the proper article that would govern the present proceeding would be Article 181 of the old Indian Limitation Act, and the period of limitation would run from the date when the decree came to be amended as contemplated in Clause (b) in column 3 of Article 182 of the Indian Limitation Act viz. that from 2-1-57, and thus the Darkhast was in time. In the alternative, his submission was that the Darkhast was already pending in the Court and in so far the claim for possession was concerned, she had expressed her willingness to deposit the amount no sooner the Court directed her to do so and she had not chosen to do so as an application for amendment of the decree was pending before the same Court and the result thereof was awaited. No sooner the order was passed below Ex. 130, she had paid up the amount though a little later on 29-3-1957. The condition is therefore fulfilled and the order for proceeding further passed by the learned appellate Judge is therefore proper.
7. Before we actually go to the consideration of the points raised by Mr. Chhatrapati, the learned Advocate for the appellant, we may set-out Article 182 of the Indian Limitation Act.
182. For the execution Three 1. The date of the decree or order, or
of a decree or order of years; or 2. (Where there has been an appeal) the
any Civil Court not where a date of the final decree or order of the
provided for by Article certified copy Appellate Court, or the withdrawal of
183 or by Section 48 of the of the decree the appeal, or
Code of Civil Procedure, or order has 3. (Where there has been a review of
1908 (V of 1908). been registered, judgment, the date of the decision
six years. passed on the review, or
4.(Where the decree has been amended)
the date of amendment, or
5.(Where the application next herein
after mentioned has been made) the date
of the final order passed on an
application made in accordance with law
to the proper Court for execution or to
take some step in aid of execution of
the decree or order, or
6.(in respect of any amount, recovered
by execution of the decree or order,
which the decree-holder has been
directed to refund by a decree passed in
a suit for such refund) the date of such
last mentioned decree or, in the case of
an appeal therefrom, the date of the
final decree of the appellate Court or
of the withdrawal of the appeal, or
7.(Where the application is to enforce
any payment which the decree or order
directs to be made at a certain date)
The period of limitation provided by this Article is three years and that begins to run as provided in Clause (2) in the third column where there has been an appeal from the date of the final decree or order of the appellate Court. In other words normally speaking since the appeal was filed against the judgment and decree passed by the trial Court in the suit, the period of limitation would run from the date of the decision in the appeal namely from 28th June 1949. Before the period of limitation would be over, the Darkhast came to be filed by the plaintiff on 27-6-1952. If the matter is left there, the Darkhast would be obviously in time. The question with regard to the fulfilment of a condition contemplated in the decree before possession of the suit property can be obtained namely of the plaintiff having to deposit the amount stated in the decree will have to be considered. That would also involve a question as to whether it would be a Darkhast in accordance with law for the relief of being put in possession of the suit property without plaintiff-decree-holder having deposited the amount before the period of limitation expires. It is in respect of this that the consideration of Clause (4) of column 3 of Article 182 of the Indian Limitation Act would have to be considered. That Clause (4) says that the period of limitation would run from the date of amendment where the decree has been amended. It is in connection with the applicability of this clause that the controversy has arisen and that clause has given rise to the two important points raised by Mr. Chhatrapati.
8. His attempt in the first place has been to show that once the appeal was filed against the decision in the suit No. 60 of 1943, the trial Court ceased to function in respect of that matter. The appellate Court can be said to have been seized of the jurisdiction to deal with when it passed an order confirming the decision of the trial Court. The only Court that could take notice of any such error as is sought to be corrected at the instance of the plaintiff, would be the appellate Court and if it refused to exercise its jurisdiction in that respect, the only remedy available to her was to go to the High Court and have the relief obtained. Before the appellate Court, such an application was made and that had come to be rejected on 7-7-1949. No further steps were taken against that order and consequently any order passed by the trial Court in that matter was beyond jurisdiction of the trial Court and in fact it would be tantamount to usurping the power of the High Court which could modify or set aside the order passed by the first appellate Court, Now this part of the argument can be divided in two parts. In the first place, he sought to suggest by reference to the provisions of Order XX Rule 3 of the Civil Procedure Code saying that the judgment shall be dated and signed by the Judge in open Court at the time of pronouncing it and, when once signed, shall not afterwards be altered or added to, save as provided by Section 152 or on review under Order XLVII Rule 1 of the Civil Procedure Code. In this respect it was said that the provisions contained in Rule 1 of Order XLVII relating to an application for review of judgment would have no application, as in the present case, an appeal was permissible in law and in fact an appeal was preferred against the decision of the trial Court. The order passed by the trial Court is said to be one under Section 152 of the Civil Procedure Code. Section 152 of the Civil Procedure Code provides that clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on application of any of the parties. So the first argument advanced by Mr. Chhatrapati was that if one peruses the order passed by the trial Court itself, it does not show that it was merely a clerical or arithmetical mistake which would entitle that Court to correct the same and the second part of his argument is that even if any such correction was permissible under Section 152 of the Civil Procedure Code, the Court contemplated therein was not necessarily the trial Court but the Court competent to pass such order, namely if an appeal is preferred and the decree is passed by the appellate Court, since that decree is a decree which becomes executable, the trial Court's decree being merged therein, would be the appellate Court. The trial Court cannot usurp the jurisdiction of the appellate Court. If however the trial Court choses to do so, it would be beyond its jurisdiction and renders any such order passed by it infruct-uous as also void and a nullity.
9. Turning to the first part of the argument, much though it may appear from the order below Ex. 130 passed on 2-1-1957 that It was not merely an arithmetical or clerical mistake, the question that arises would be whether once that order is passed, whether right or wrong, whether falling under Section 152 of the Cods of Civil Procedure or not, would it be open to the executing Court to sit in judgement over the same and decide the validity or otherwise of that order. The contention of Mr. Shah was that it was open to the appellant to challenge that order by preferring an application in revision in the High Court if no appeal was provided, and he having not done so, he cannot agitate the same. In other words it was said that the executing Court cannot sit in revision and thereby usurp the powers of the High Court for deciding the legality or otherwise of the order passed by the trial Court below application Ex. 130. In this connection, Mr. Shah relied upon two cases.
10. Before referring to those cases, a reference to clause 4 in the third column of Article 182 already set out above, would make It clear that the period of limitation shall run from the date of amendment where the decree has been amended. It does not contemplate any reservation whatever by saying that the amendment shall be of formal or of substantial character, or that done by the trial Court or the appellate Court. It has to be given a plain grammatical meaning and on that basis, all such questions whether amendment was properly done by the trial Court or not would not arise, as what is to be considered by the Court is as to whether amendment in the decree was made or not, and if made, it was not open to challenge in the executing Court. The two cases cited by Mr. Shah lay down the same principles. The first case is one of Imam Din v, Peoples I. & S. Bank, A. I. R 1941 Lahore 131. It has laid down two propositions: (1) 'There is no warrant for the proposition that Clause (4) applies only to cases where the amendment is in the real sense of the term, that is of some substance as affecting the rights of the parties. Application of Clause (4) cannot be restricted to those decrees only in which the amendment is of a particular type. The Article applies, whether amendment was merely a formal one or was really unnecessary', The other one is that, 'It is not the function of the executing Court to question the correctness or propriety of the amendment of the decree. That is a matter which should be agitated before the Court, which amended the decree, at the time when proceedings for amendment were going on. ' Another case which was referred to by him was of one Mohammad Jabir and Ors. v. Narain Prasad Daruka and Ors. : AIR1960Pat126 . In this case also the same view has been taken namely that it is not open to the executing Court to go behind the order of amendment of a decree and to require whether the amendment was a substantial amendment or merely an amendment of a clerical or arithmetical nature. It is also not open to the executing Court to go into the question whether the amendment was necessary or not necessary or whether the Court of the Munsif was competent to make the amendment or not. Their Lordships have been observed that the language of Article 182 must be given a strict grammatical meaning and equitable considerations are out of place. It would follow therefrom that it would be beyond the scope of the executing Court to go into the question as to whether the amendment was of a clerical or arithmetical mistake or of a substantial nature which was beyond the scope of the Court to do having regard to Section 152 of the Civil Procedure Code. Nor would it be open to the executing Court to consider the question as to whether the trial Court was competent to make the amendment or not. Such a question, no doubt, could have been raised by the defendant himself by taking the matter in revision to the High Court if he was dissatisfied with the order passed below Ex. 130 by the trial Court. That part of the argument of Mr. Chhatrapati cannot hold good in this proceeding.
11. The more important part of his argument is based on the principle that once the appellate Court has exercised its power in respect of the matter before it and passed a decree either confirming the same or modifying or passing a different decree, that decree would be the decree in the matter and the trial Court's decree would stand merged in the decree passed by the appellate Court, In support of this, he invited my attention to several cases in that respect and it appears that on that principle there hardly arises much controversy. However, I would briefly refer to some of the cases relied upon by him. The first case relied upon by him was Hussain Sab Wallad Hasan Sab Gaima v. Sitaram Vighneshwar Bhadti 54 B.L.R. 947. la that case, one Sitaram had filed a suit in respect of certain properties and claimed possession thereof. The trial Court passed a decree in his favour on 28-2-1948. The defendant appealed against that decree and the decree was confirmed by the District Judge on 29-6-1950. A Second Appeal to the High Court was summarily dismissed on 12th October 1950. On January 31, 1951, the plaintiff made an application under Section 152 of the Civil Procedure Code to the District Court for amendment of the decree, alleging that the suit property had been wrongly described in the plaint as bearing City Survey No. 1372 instead of its correct description which was City Survey No. 1572. The contention raised by the defendant was that the amendment could not be made by the District Court but could be made either by the trial Court or by the High Court. The District Judge granted the application of the plaintiff. The matter was then taken to the High Court and it was held:
When an appeal is summarily dismissed by the High Court under Order XLI, Rule 11 of the Civil Procedure Code, 1908, the original decree from which the appeal was preferred remains untouched and it is the original decree which is the substantive decree. Therefore, if an application is made for amending the decree, it must be made, not to the High Court which has exercised its power under Order XLI, Rule 11, of the Code, but to the Court which passed the substantive decree.
Then it has been observed that:
If a decree of confirmation is passed by the appellate Court, the decree of the trial Court merges in the decree of the appellate Court. The decree which is in existence and which can be executed is the decree of the appellate Court and not the decree of the trial Court. The fact that the appellate Court does not vary the decree of the trial Court does not make any difference to the legal position that ultimately it is the decree of the appellate Court which is the substantive decree and which must be amended if an amendment is sought.
The next case to which my attention was invited by Mr. Chhatrapati was: Deba Nand Naithani v. Jayanand and Ors. I.L.R. 1961 Allahabad 486 where it was held that the proper Court for making the application under Section 152 in cases when an appeal has been decided on merits and the decree of the Lower Court has merged into the appellate decree, would be the appellate Court and not the original Court. Once a decree is affirmed by the High Court, it merges into the decree of the High Court and it is no longer open to the Lower Court to vary that decree by way of review. This case has followed the previous decision of the Full Bench in Muhammad Sulaiman v. Yar Khan I.L.R. 11 Allahabad 267 where it was laid down that where a decree has been affirmed on appeal 'the only decree which can be amended under Section 206 (now 152) of the Code is the decree to be executed, and the decree to be executed is that of the appellate Court and not the superseded decree of the first Court, though the latter may, if necessary, be referred to for the purpose of executing the appellate decree. The only Court which has jurisdiction to amend the appellate decree is the Court of appeal. ' The same view has been reaffirmed by various other High Courts including this High Court in the case of Ranchhod Bhalaji v. Kuberdas III G.L.R. 137. In that case, this Court held: 'that when the appellate Court makes a decree, the decree of the original Court is merged in that of the Superior Court and it is the latter decree alone that can be executed. The decree of the original Court is merged in the decree of the appellate Court for all purposes and the only decree which subsists is the decree of the appellate Court. ' The last case on that point relied upon by Mr. Chhatrapati is: Collector of Customs v. East India Commercial Co. : 2SCR563 , The observations of the Supreme Court are:
When an appeal is made, the appellate authority can do one of three things, namely, (i) it may reverse the order under appeal, (ii) it may modify that order, and (iii) it may merely dismiss the appeal and thus confirm the order without any modification. In all these three cases after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it. In law, the appellate order of confirmation is quite as efficacious as an operative order as an appellate order of reversal or modification.
Later on Their Lordships observed:
The principle viz., that the appellate order is the operative order after the appeal is disposed of, is the basis of the rule that the decree of the Lower Court merges in the decree of the appellate Court. On the same principle it would not be incorrect to say that the order of the original authority is merged in the order of the appellate authority, whatsoever its decision whether of reversal or modification or mere confirmation.
From the aforesaid decisions, it becomes obvious that once the appeal is preferred against the decision of the trial Court in the suit and that appellate Court confirms the decision of the trial Court, it is the decision of the appellate Court which becomes the operative decree and the decree of the trial Court merges therein. Further it would also follow therefrom that if any amendment of decree has to be made, the appellate Court would have the competence to do so and not the trial Court.
12. This leads to the consideration of the further question as to the effect of any such order by which the decree is amended by the trial Court namely as to whether any such order passed by the trial Court would be void and nullity and not required to be set aside, and that in consequence, the executing Court can go into that question. What was urged by Mr. Shah, the learned Advocate for the respondent was that there is a distinction between an erroneous exercise of jurisdiction by a Court and between a Court lacking inherent jurisdiction whatsoever to pass by such order. According to him the order falling within the latter part would be void whereas the one passed in the erroneous exercise of the jurisdiction by the Court would not necessarily be void unless it is set aside by the Higher Court. According to him the order passed by the trial Court in the present case falls in the first category of cases and since that order has remained without being set aside by the appellate Court, it cannot be challenged in other proceedings such as in the executing Court. He invited my attention to some of the cases which make those distinctions. The first one relied upon by him is the case of Bajirao Narhar Peshva v. Sakharam Balvant Peshwa XXXIII B.L.R. 463. The question in that case that arose was as to whether the decree-holder was entitled to execute a decree obtained by way of compromise decree in suit No. 289 of 1912 against the respondent-deceased Ambaji Khanderao. The contention raised in that case was that the clause in regard to certain terms given in the decree was outside the scope of the suit and therefore could not be executed in the Darkhast. The first appellate Court held that the decree was outside the scope of the suit and therefore was not executable. While considering that question it was observed that the general rule is that an executing Court cannot question the decree sought to be executed except on the score of patent want of jurisdiction, and as pointed out by Walmsley J. at page 173 in the case of Gora Chand Haldar v. Prafulla Kumar Roy I.L.R. 53 Calcutta 166 referred to hereinafter, In this case it was held that where a decree presented for execution was made by a Court which apparently had not jurisdiction, whether pecuniary or territorial or in respect of the judgment-debtor's person, to make the decree, the executing Court is entitled to refuse to execute it on the ground that it was made without jurisdiction. Within these narrow limits, the executing Court is authorised to question the validity of a decree. In other words it is only when the Court lacks its inherent jurisdiction while passing any order in a matter that the executing Court would be entitled to go into that question and in no other case, the executing Court would be entitled to question the validity of a decree or order. Then the other case which Mr. Shah relied upon was: Govind Woman v. Murlidhar Shrinivas LV B.L.R. 466. The facts of the case were that two brothers who were defendants 1 and 2 filed a suit No. 341 of 1926 for accounts and possession of their properties in the management of Mahadev Shrinivas and Yeshwant. It ended in a compromise decree which provided that the properties in suit should be delivered to defendants 1 and 2 and proceeded to say that the defendants 1 and 2 and their defendants alone shall enjoy the said land and the building and that they should not alienate the same by lease etc. It further provided that they should let it out only to their caste people and if in contravention of these conditions, the plaintiffs or their decendants alienate, then Defendants Nos. 2 and 3 or their decendants shall be entitled to recover possession of the suit land and the house. The trial Court held that the decretal clause forbidding alienation contravened Section 10 of the Transfer of Property Act and was, therefore, invalid and illegal. On appeal, the District Judge reversed the decree of the trial Court and decreed the plaintiff's suit saying that the consent decree binds the parties and their representative till it is set aside by a separate suit for the purpose. In appeal filed by defendant No. 3 to the High Court, the Division Bench of the Bombay High Court held that: 'It is necessary to distinguish between decrees which are illegal and void and those that are contrary to law. The decrees falling in the latter category are binding between the parties unless they are set aside in proper proceedings'. They further said that 'A compromise decree, passed by a Court of competent jurisdiction, which contains a term contrary to the provisions of Section 10 of the Transfer of Property Act, 1882, is not a nullity and is binding as between the parties unless it is set aside by proper proceedings. ' Dealing with that question, His Lordship Gajendragadkar J. further observed that 'Courts have jurisdiction to decide rightly as well as wrongly and errors which may be committed by the Courts may be errors of facts as well as errors of law. This may apparently sound cynical; but it emphasises the principle that judicial decisions are final and binding as between the parties unless they are effectively challenged by way of appeal or otherwise. If a Court with jurisdiction passes a decree which is based upon an error of law, it would be difficult to take the view that the decree is for that reason a nullity.... It may be that when a compromise decree is pissed, the Court does not decide the dispute on the merits; but even so, it is bound to consider whether the compromise is lawful; and if through oversight or error, an unlawful compromise is allowed and a decree is passed, it can be challenged by a suit; but until it is set aside, it must be held to be binding between the parties. ' Later on it has been observed that 'such pleas cannot be raised and entertained in execution: It is only if the decree is a nullity that the executing Court may refuse to execute it. This limited jurisdiction is however exercised where decrees are passed by Courts without jurisdiction or are otherwise patently illegal or e. g. when they are passed against a dead person. In this connection, it is necessary to distinguish between decrees which are illegal and void and those that are contrary to law. In our opinion, the decrees falling in the latter category are binding between the parties unless they are set aside in proper proceedings. ' We have finally a decision of the Supreme Court in the case of Hira Lal v. Kali Nath : 2SCR747 . There the same distinction has been made. The observations of the Supreme Court are:
The validity of a decree can be challenged in execution proceedings only on the ground that the Court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seizin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the Court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it.
The net result of these authorities is that if the decree or order passed by a trial Court is illegal or void by reason of its lacking in inherent jurisdiction as contemplated in the observations made by the Supreme Court in the case above referred, then such an order has to be treated as illegal and void and it would be a nullity. In that event only, the order can be challenged in the execution proceedings. On the other hand, if there is an erroneous exercise of jurisdiction by Court in passing an order in any matter, such order is not a nullity or void as such and it stands until the same is set aside. The illegality in any such part of the order would not render the order void and infructuous or nullity, and when that is so, it is well settled that the executing Court cannot question the validity of such order. It has got to be set aside by proper proceeding and unless it is set aside, it binds the parties to the same.
13. It is in the light of these settled principles of law that we have to consider as to whether the order passed below Ex. 130 by the trial Court is such which can be treated as nullity or that it stands until set aside by a competent Court. Now, in the first place it is no doubt true, as pointed out by Mr. Chhatrapati that the trial Court was not competent to pass any such order under Section 152 of the Civil Procedure Code, as the Court which could have passed such an order was the appellate Court inasmuch as the trial Court's decree had already merged in the decree passed by the appellate Court. Now it has to be remembered that the trial Court which passed the original decree had certain powers to entertain applications for amending the decree such as for bringing heirs on record or so under different provisions of the Civil Procedure Code, and at any rate if no appellate decree was passed, it had competence and jurisdiction to amend the decree either by way of review or under Section 152 of the Civil Procedure Code. It was. therefore, not a Court which lacked inherent jurisdiction to try the suit or pass a decree therein. The exercise of jurisdiction in amending the decree under Section 152 of the Civil Procedure Code by the trial Court is not forbidden by any specific provisions of the Civil Procedure Code, saying that it shall not pass any order such as the one for amending the decree or not review the matter under the provisions of the Civil Procedure Code after the appeal is filed against its decision. The proposition or the principle of merger of the trial Court's decree in that of the appellate Court's decree has been on the basis of authorities and that way, if any error is committed by the Court, in exercising such jurisdiction, as it did in this case, it can only be called an erroneous exercise of it and certainly it cannot be said that it lacked inherent jurisdiction. Lack of inherent jurisdiction may arise as it were by reason of its pecuniary jurisdiction, or territorial one. It can arise by reason of any statutory provision taking away the jurisdiction of any such Civil Court such as by reason of providing special Courts under special enactments. It may arise by reason of exercising jurisdiction against a dead person. This is not such a case, as pointed out hereabove, where the trial Court lacked inherent jurisdiction, but was competent to exercise in respect of the matter if no appellate decree had come to pass. In the present case, however, not only that, but even when the plaintiff filed an application in the appellate Court for the same relief namely for having the decree amended on the ground that there was a clerical error, this very defendant raised an objection saying that it was not the appellate Court which could amend the decree in law and that the application was not maintainable in that Court. The appellate Court accepted his contention and rejected the application saying that as the mistake was in the trial Court's judgment and decree, the application would lie in the trial Court. Now when the plaintiff made an application to the Court for seeking the same relief, he also contended that the trial Court had no jurisdiction or rather was not competent to pass any such order saying that it was the appellate Court which could pass the appropriate order. The trial Court however, negatived this contention and passed the order. It is true that the defendant is not debarred from taking up any such contention in the trial Court by reason of the fact that he had taken a stand just the opposite in the appellate Court, but the fact remains that it was under such circumstances that the trial Court thought that it was quite competent to correct the error that had crept in its own judgment and decree and that it was justified in correcting the same under Section 152 of the Civil Procedure Code It may well be that it may have been fortified in the view that it took, by the observations of the appellate Court made in its order on a similar application when presented before it If, therefore, one were to visualise the circumstances in which the order was pissed, the ulmost that we can say in that respect is that it was an error in thinking that it had jurisdiction to pass the order when in fact we find on the basis of the cases referred to above that it had ceased to have jurisdiction to pass any such order after the appellate Court confirmed its decision. It was thus a mistake or rather an error which would fall in the category of erroneous exercise of jurisdiction, and in no case, it can be said that it lacked inherent jurisdiction, in passing that order. It may be an illegal order based on wrong view of law, and if any such wrong order is passed, it cannot ipto facto become void unless set aside by competent Court. It was open to the defendant to have it set aside by recourse to law, and if no appeal was provided against such an order, by preferring an application in revision to the High Court. As long as that order stood, it governed the case and the parties and the executing Court would have no power or authority to question the validity of that amended decree. If the Court lacked inherent jurisdiction to pass any such order, it is plain that the order would be void and nullity and it would not have to be set aside. It can be ignored and can be challenged when sought to be used against him. We need not refer to the various authorities cited in that respect. It is enough to refer to the case of this Court in Bhikhabhai v. J.V. Vyas IV G.L.R. 873, where the Division Bench of this Court has laid down that:
Any decision of a Court which lacks inherent jurisdiction to try the matter cannot operate as res judicata in a subsequent proceeding The doctrine of res judicita is based on estoppel by record and no estoppel can be created by a nullity. If the decision of the executing Court was a nullity, as being the decision of a Court suffering from inherent want of jurisdiction, such decision could not operate as res judicata
Later on Their Lordships have observed that:
If the decision of the executing Court was a nullity it was not necessary to prefer any appeal against it or to take any proceeding to have it set aside A decision which is a nullity does not create any rights or impose any obligations and does not require to be set aside.
Since I have held that the impugned order passed on 2-1-1957 below Ex. 130 whereby the decree was ordered to be amended, though illega but not having the effect of being a nullity, and since it has not been set aside, it governed the case and the parties, the executing Court cannot, therefore, go into the question for determining the validity of such an order.
14. The next point raised by Mr. Chhatrapati is that the decree was of a conditional character and as that condition was not fulfilled when the Darkhast was filed, subsequent compliance of a condition cannot make the application for execution in accordance with law. According to him, Article 181 of the Indian Limitation Act would apply and the execution application would be time barred. It is true that the original decree provides that the plaintiff would be put in possession of the suit property on payment of Rs. 1762-8-0. The decree passed by the trial Court was confirmed by the appellate Court and the same decree therefore stood. Mr. Chhatrapati's contention is that when the plaintiff filed the execution application for claiming possession of the property, it was obligatory upon the plaintiff to deposit the amount required to be paid to the defendant before claiming possession. That was, according to him, a condition precedent before any relief could be given by the executing Court. Since no such amount was deposited along with that application for execution, the execution application was not competent and as the amount was paid later i. e. after the period of limitation was over, even if the execution application was made, it was time barred. Mr. Chhatrapati relied upon a case in Sattu Tippe v. Dnyanu Maruti Khade XL B.L.R. 512. In that case, the plaintiff sued to recover possession of the property purchased by Dnyanu-the plaintiff and decree was passed in terms of a compromise on 30th September 192S. Under that decree, the plaintiff became entitled to recover possession of the property from the defendants on paying her Rs. 350/- in January 1926. Such a decree containing a condition that plaintiff shall pay a particular sum on a particular date before getting possession of the property was held to be a decree which would be governed by Article 181 and not Article 182 of the Limitation Act and the period of limitation runs from the date on which the amount was to be paid. According to him the period of limitation in this case would run from the date of the decree, as amount was payable from that date. The distinguishing feature in this case is that there is no date fixed on which the amount is required to be paid as against the one in the case referred to above. It may well be that the decree may provide a longer period even beyond the period of limitation for payment of amount before getting possession of the property. In that event, the possession has to be awarded on payment of a sum on a future date and in that case the residuary Article 181 of the Indian Limitation Act would come in and that again would only come in provided Article 182 does not apply. Where no such date is fixed, Article 182 applies and the period of limitation runs from the date of the decree and if there is an amendment in the decree, from the date of the amended decree under clause 4 in this column of Article 182 of the Indian Limitation Act. That case, therefore, cannot help him and as possession of the property is to be obtained through the process of Court it has to be recovered within three years. In a case of Yeshwant Deorao v. Walchand LIII B.L.R. 486 it has been held that:
Articles 181 and 182 of the Indian Limitation Act aad Section 48 of the Civil Procedure Code should be read together. The articles expressly refer to the section but they are independent or parallel provisions, different in their scop: and object. Section 48(2) extends the twelve years' period of closure by a further period of similar duration, but the necessity of resort to Article 182 is not thereby obviated.
It follows therefrom that the decree has got to be kept alive as contemplated under Article 182 of the Indian Limitation Act before twelve years contemplated in Section 48 are over. The point made out by Mr. Chhatrapati however was that the present execution application was not in accordance with law inasmuch as the amount was not deposited in Court simultaneously with that application. That would arise if Article 182 clause 4 would not apply. However, if we turn to the application for execution, it has been stated by the applicant herself that she had made an application for having the mistake corrected and on that being done or when the Court directs, she would deposit the amount contemplated in the decree. However, that application remained to be decided with the result that no further steps were even taken in respect of the claim for possession of the property. When the decree was amended on 2-1-1957, the plaintiff thereafter deposited on 29-3-1957 the amount as per the amended decree.
15. In my opinion, the execution application filed by the appellant was in no way illegal or not in accordance with law for after all the relief in respect of possession of the property could not be given at that very time unless the amount was deposited by the plaintiff in Court. It was, in this connection, said that nothing prevented the plaintiff from depositing the entire amount under the decree and have the amount refunded in case the decree was amended as was done later on. The condition therefore was not fulfilled and that way the decree could not be executed. In substance the position would be that the Court cannot grant any relief to the plaintiff in respect of possession of the property until the plaintiff deposited that amount, but it would not mean that the application for execution made by the plaintiff was not in accordance with law. In fact, that application remained on the record and the relief for possession was to be delayed till payment of the amount was made by her in Court. In fact we find from the application made on 20-12-1952 that she had prayed in her Darkhast to proceed in respect of the recovery of the amount due on. account of costs, and for the other part of the relief requested the Court to wait till the decree was amended or in case directed, she was prepared to pay the amount. No direction was given by the Court to pay up, and on the contrary as we find, that it allowed that relief in that Darkhast to stand over till amendment application was decided. Thus even the Darkhast was in accordance with law and was pending in the Court, keeping the same in time. En my opinion, therefore in the first place ' it was the date of amendment of the decree that the starting point for limitation under Article 182(4) began and that way there is no bar of limitation for relief in respect of property, as the amount was deposited on the basis of the amended decree. Besides, though a condition so essential to be fulfilled before possession could be obtained of the property in question, it cannot be said that by reason of the plaintiff not depositing the full amount in Court at the time when the execution application was filed, it renders the execution application invalid or shows that it is not in accordance with law. It is only on the fulfilment of the condition that the execution was to proceed and not otherwise. Article 181 of the Indian Limitation Act can apply to the facts of this case when no specific time is fixed for payment of the amount for recovery of possession of the property. The Darkhast is in time and I do not see anything wrong in the order passed by the learned Assistant Judge. The appeal is, therefore, dismissed with costs.