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Mangla Ram Vs. Paras Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Second Appeal No. 462 of 1969
Judge
Reported in1970WLN491
AppellantMangla Ram
RespondentParas Ram and ors.
DispositionAppeal dismissed
Cases ReferredAppukuttan v. Gopala Pillai
Excerpt:
limitation act - decree passed under order xx, rule 6--a clericalerror rectified by an amended decree--whether period of limitation starts from the amended decree for purpose of appeal.;the starting point of limitation would be the date of the amanded decree if the appeal is confined to the amended portion of the decree. in case the appeal is directed against the decree as it stood prior to the amendment, the starting point would be the date of the unamended decree.;no new relief was granted by the amendment which was ordered to be made by the trial court simply in order to make the decree which the judgment as required by order xx, rule 6, c p.c. the amendment of the decree in the present case was, therefore, clearly a correction of a clerical mistake or error arising from an accidental..........his report within a month after examining the accounts in presence of the parties.5. from the amended preliminary decree manglaram filed appeal in the court of district judge, balotra. a praliminary objection was taken to the maintainability of the appeal on the ground of limitation. it was urged that the preliminary decree had been passed as far back as 18th july, 1962 and the appeal filed from it on 9.9.1968 was hopelessly barred by time and chould be dismissed as such. the contention raised on behalf of the appellant however, was that limitation for filing the appeal could start from the date the amendment was made in the decree. it was urged that the amendment had been made in this decree in the present case on 26.8.1968, and treating this date as the starting point of.....
Judgment:

C.M. Lodha, J.

1. This second appeal by the defendant arises out of a suit for dissolution of partnership and rendition of accounts.

2. The plaintiff-respondent No.1 Paras Ram alleged in the plaint that a parthership was formed between him and the defendants-Bhoor Chand and others in the month of Baisahk, Samwat 2013 for plying a motor bus RJQ 164 on Balotra-Sanchore route. It was prayed that a decree for dissolution of pantnershsp and rendition of accounts be granted.

3. A preliminary decree for dissolution of partnership and rendition of accounts was passed under Order xx, Rule 15, Civil P.C. on 18.7.1962, where by the proportionate shares of the parties were declared and the partnership was held to have been dissolved on 31.5.1960. It was also mentioned in the judgment that Shri Jagdish Prased Gupta be appointed as Commissioner, on tentative payment of Rs.50/--as his fee for going into the accounts of the partnership. He was directed to submit his report within a month of that the final decree may be passed. This latter portion of the judgment was, however, omitted in the decree. The Commissioner submitted his report in due course and after inviting objections and deciding the same, the trial court passed a fingl decree on 31.7.1964. Aggrieved by the final decree the defendant Manglarem filed appeal which was allowed and the case was sent back to the trial court for taking additional evidence and then to decide the matter afresh.

4. When the case went back to the trial court for taking additional evidence, the defendant filed an application for amendment of the preliminary decree under Section 152,C.P.C., on 19.8.1968. By this application it was prayed that the proceedings before the Commissioner for taking accounts be declared void and without jurisdiction as the partnership was void ab initio under Section 59 of the Motor Vehicles Act, 1939. In the alternative it was also prayed that the preliminary decree be amended so as to incorporate in it the direction regarding taking of accounts and appointment of the Commissioner for that purpose. This application was opposed by defendent No. 1 Bhoor Chand. The learned Civil Judge, Balotra by his order dated 17.9.1968 held that there was a clerical mistake in the decree which ought to have been prepared in consonance with the judgment and since the relief granted in the judgment for taking of accounts and appointment of the Commissioner had not been incorporated in the decree, the decree may be amended so as to bring it in line with the judgment. In persuance of this order the decree was amended so as to add the following paragraph in it.

Shri Jagdish Prasad Gupta is appointed as Commissioner to go into the accounts. His fee is fixed at Rs. 55--tentatively. Shri Gupta is said to be in possession of the account books of the firm. He is directed to submit his report within a month after examining the accounts in presence of the parties.

5. From the amended preliminary decree Manglaram filed appeal in the Court of District Judge, Balotra. A praliminary objection was taken to the maintainability of the appeal on the ground of limitation. It was urged that the preliminary decree had been passed as far back as 18th July, 1962 and the appeal filed from it on 9.9.1968 was hopelessly barred by time and chould be dismissed as such. The contention raised on behalf of the appellant however, was that limitation for filing the appeal could start from the date the amendment was made in the decree. It was urged that the amendment had been made in this decree in the present case on 26.8.1968, and treating this date as the starting point of limitation the appeal was within time.

6. The learned District Judge accepted the preliminary objection raised on behalf of the respondents and dismissed the appeal as barred by time. It is in these circumstances that this second appeal has been filed by the defendant Manglaram.

7. Learned Counsel for the appellant has relied upon Tincowri v. Nanigopal AIR 1960 Cal. 253, and Venkatarao v. Sathireju AIR 1946 Mad. 201, in support of his contention that limitation for an appeal from an amended decree runs from the date of the amended decree and not from the date of the original decree. In Venkatarao v. Sathirajiu AIR 1946 Mad. 201 the learned Judge obesrved as follows:

The question of limitation is not really of great importance in this case for, if we were of opinion that time had to be calculated from from the date of the original decree, we could in a proper case excuse delay under Section 5, Limitation Act. We do however, wish to express our opinion that in a case of this kind where the appellant does not contest the correctness of the original decree except in so far as he attacks the reduction of the decree by the amendment, time should properly run from the date of the amended, decree and not the date of the original decree.

8. In Tincowri v. Nanigopal AIR 1960 Cal. 253 it was held that if the decree is amended on an application under Section 151 or 152, C.P.C, and the appeal is confined to the amended portion only, the starting point would be the date of the amandment.

9. It would be interesting to note that in the Madras case AIR 1946 Mad. 201 referred to above the appeal was preferred only against the decree as amended while in the Calcutta case AIR 1960 Cal. 253 the appeal was directed against the decree as it stood prior to the amendment, and, therefore, the starting point for limitation was held to be the date of the original decree

10. Learned Counsel for the respondent, however, urged that in no case and under no of circumstances limitation for appeal from an amended decree, can be counted from the date of amendment and in support of his contention he relied upon Appukuttan v. Gopala Pillai : AIR1969Ker183 . In this case it was observed that even if the appeal is against that portion of the decree that is amended under Section 151 or Section 152 C. P. C. time does not run from the date of the amendment for filing the appeal, if there is on alteration in the date of the decree itself though in a proper case, the delay may be excused under Section 5 of the Limitation Act. With great respect, I find myself unable to subscribe to this extreme view. To my mind the correct view is that the starting point of limitation would be the date of the amended decree if the appeal is confirmed to the amended portion of the decree. In case the appeal is directed against the decree as it stood prior to the amendment, the starting point would be the date of the unamended decree.

11. In the present case it may be observed that the preliminary decree was undoubtedly passed under Order xx, Rule 15, C P C., of which there is a mention in the trial court's order also dated 18.7.1962. The order passing the preliminary decree specifically directs taking of accounts and appointment of Commissioner for that purpose. But it appears that inadvertently this direction was not incorporated in the decree. In the grounds of appeal filed before the lower court from the preliminary decree what has been attacked is not the amended portion of the decree but the original decree where by the partnership was declared have been dissolved. The decree has been assailed on the ground that the partnership was illegal and void ab initio and no suit could lie for dissolution of such partnership and rendition of accounts. The order of amending the decree seems to have been made a mere pretext for extending limitation for filing the appeal so as to challenge the original decree itself. No new relief was granted by the amendment which was ordered to be made by the trial court simply in order to make the decree with the judgment as required by Order xx, Rule 6, C.P.C. The amendment of the decree in the present case was, therefore, elearly a correction of a clerical mistake or error arising from an accidental slip or omission. In this view of the matter I have come to the conclusion that the appeal was preferred by the appellant in the lower appellate court not from the amended decree but from the original decree as it stood before amendment and the amendment was sought to be used merely as a garb so as to bring the appeal within limitation.

12. In this view of the matter the learned District Judge was right in dismissing the appeal as barred by limitation, and consequently I dismiss this appeal, but without any order as to costs.


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