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Katikara Simhagiri Dora Alias Latchanna Dora and ors. Vs. Sri Vyricherla Chandramani Pattamahadevi, Zamindarini of Chemudu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1949)1MLJ171
AppellantKatikara Simhagiri Dora Alias Latchanna Dora and ors.
RespondentSri Vyricherla Chandramani Pattamahadevi, Zamindarini of Chemudu
Cases ReferredParameshraya v. Seshagiriappa I.L.R.
Excerpt:
- - 424, where best, j. , the other judge in that bench, did not duscuss this question at all, and gave a reluctant assent to the order proposed by his learned brother best, j. , did not expressly say that an appeal against the amended decree would not lie, nor did the full bench, and best j. lakshminarayanamurthi air1943mad185 ,clearly followed viswanathan chetty v......been filed under section 115, civil procedure code; and a preliminary point has been taken that no civil revision petition lies.2. one of the earliest cases in which the question whether a revision petition lay against such an amendment, or an appeal, was considered was raghunath das v. raj kumar i.l.r. (1884) all. 276, which was followed by the same two judges in surta v. ganga i.l.r. (1885) all. 411.-oldfield, j., held that since the decree was amended, an appeal would lie against the amended decree. mahmood, j., in a long discussion of the various aspects; of the case, did not directly say that no appeal would lie against the amended decree, but discussed whether the amending order would amount to a decree and he held that it would not. he then went on to express his opinion that a.....
Judgment:

Horwill, J.

1. On an application by the sixth defendant the lower Court amended what is often described as the decretal part of the judgment to bring it into conformity with the earlier parts of the judgment. He thereupon amended the decree to bring it into conformity with the amended judgment. Against that order, this revision petition has been filed under Section 115, Civil Procedure Code; and a preliminary point has been taken that no Civil Revision Petition lies.

2. One of the earliest cases in which the question whether a revision petition lay against such an amendment, or an appeal, was considered was Raghunath Das v. Raj Kumar I.L.R. (1884) All. 276, which was followed by the same two Judges in Surta v. Ganga I.L.R. (1885) All. 411.-Oldfield, J., held that since the decree was amended, an appeal would lie against the amended decree. Mahmood, J., in a long discussion of the various aspects; of the case, did not directly say that no appeal would lie against the amended decree, but discussed whether the amending order would amount to a decree and he held that it would not. He then went on to express his opinion that a revision did lie. The matter was again considered in Letters Patent Appeal by a Full Bench in Raghunath Das v. Raj Kumar (1884) 7 All. 876 in which, in a single sentence judgment, the view of Mahmood, J., was accepted. A similar question arose in Narayanaswami. v. Natesan I.L.R. (1892) Mad. 424, where Best, J., referred to the Allahabad cases and said, with regard to the objection that no revision petition lay:. it is contended that, though an order passed under Section 206 (Section 152 of the present Code) is not appealable as an order under Section 588 (Section 104), the decree as amended, is appealable. This was the opinion of Oldfield, J., in Surta v. Ganga I.L.R. (1885) All. 411, but Mahmood, J., was of different opinion in the same case, and on appeal the Full Bench agreed with the latter, Surta v. Ganga I.L.R. (1884) All. 875, and this view appears to have been adopted by this Court also. This first objection must, therefore be disallowed.

Muttuswami Aiyar, J., the other Judge in that Bench, did not duscuss this question at all, and gave a reluctant assent to the order proposed by his learned brother Best, J. It may however be taken, from the fact that he agreed to the order passed, that he was of opinion that a revision petition lay. Since Mahmood, J., did not expressly say that an appeal against the amended decree would not lie, nor did the Full Bench, and Best J.'s opinion was apparently not concurred in by Muttuswami Aiyar, J., the argument was put forward in Viswanathan Chettiar v. Ramanathan Chetty I.L.R. (1901) Mad. 646 that an appeal against the amended decree did lie. That view was accepted by the Bench in these words:

Mr. Justice Mahmood in discussing the question in Nanda Rai v. Raghunandan Singh (1884) 7 All. 282, overlooks the possibility of an appeal against the decree as amended, and for that reason comes to the conclusion that Section 622 of the Code of Civil Procedure must be applied. It must be admitted that Mr. Justice Mahmood's view has been followed in one or two cases in this Court, but no reported case is cited in which a Bench of Judges has held that an appeal against the amended decree will not lie.

Earlier in the judgment, the learned Judges said that a petition under Section 622 (Section 115) was not admissible. The learned Judges in Viswanathan Chetty v. Ramanathan Chetty I.L.R. (1901) Mad. 646 did not consider that there was anything in Narayanaswami v. Natesan I.L.R. (1892) Mad. 424, or in any other case that it was necessary for them to express dissent from. Wadsworth and Patanjali Sastri, JJ., in Arunachalam Chettiar v. Govindaswami Goundar. : AIR1942Mad519 and Sitaramamurthi v. Lakshminarayanamurthi : AIR1943Mad185 , clearly followed Viswanathan Chetty v. Ramanathan Chetty I.L.R. (1901) Mad. 646. It has been argued that in Parameshraya v. Seshagiriappa I.L.R. (1899) Mad. 364 a Full Bench, in similar circumstances, held that a revision petition would lie, or at any rate that the Court could interfere in revision. That was a case in which there was an appeal against the amended decree; and in dismissing the appeal, the Court deleted that part of the decree which had been amended. There is no reason, however, to think that in doing so, the Court invoked Section 115, Civil Procedure Code for that purpose; for in exercising their jurisdiction in appeal, they certainly had the power to amend the decree in any way they chose.

3. The preliminary objection is upheld. It has been suggested that this civil revision petition should be converted into a regular appeal. That can hardly be done, since the decree appealed against has not been filed.

4. Since Section 115 refers to a 'case' that word may include the order to amend together with the amended decree, in which case interference in revision would be prohibited under that section; but even if we distinguish the order to amend and the amended decree, the entertainment of a Civil Revision Petition would be objectionable, when an alternative remedy is available.

5. The preliminary objection being upheld, the Civil Revision Petition is dismissed with costs.


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