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A. Palanivel Chettiar Vs. R. Elumalai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 888 of 1983
Judge
Reported inAIR1985Mad303
ActsCode of Civil Procedure (CPC), 1908 - Sections 151 and 152
AppellantA. Palanivel Chettiar
RespondentR. Elumalai
Appellant AdvocateS. Desikan, Adv.
Respondent AdvocateM.N. Sundararajan, Adv.
Cases ReferredPatham Bi v. Mytheen Bibi
Excerpt:
.....of decree subsequently-whether permissible.; after the court recording full satisfaction of the decree the decree-holders sought amendments of the decree to incorporate the award of interest and also the costs the judgment-debtor contended that after the recording of full satisfaction of the decree, the decree becomes extinct and the court becomes functus officio so far as the decree is concerned and thereafter it has no power to amend the decree. the trial court overruled the contention and ordered amendment.; in the revision by the judgment debtor the question that came up for consideration was whether after the decree is fully discharged and full satisfaction was recorded, the court has the jurisdiction to order amendment of the decree.; held, once a decree gets fully satisfied..........countenanced in fakruddin mahomed ahsan v. official trustee of bengal (1884) ilr 10 cal 538. the learned judges observed that if a judgment-debtor desired to show that more money has been levied from him under the execution than was due from him under the decree, the only course open to him was to apply for a review of the order and have the execution proceedings struck off. in patham bi v. mytheen bibi(1902) mad lj 96 it has been countenanced that an amendment of decree after satisfaction has been entered up is a mere nullity unless steps are also taken at the same time to set aside the order recording satisfaction.5. in pitam. lal v. balwant singh air 1925 all 556, in concurring with sulaiman j. who constituted the bench along with him, daniels j. observed-"when a decree for money.....
Judgment:
1. The judgment-debtor, defendant in O.S. 250 of 1975 on the file of the District Munsif, Coimbatore, is the petitioner in this revision. The decree-holder, plaintiff in the suit, is the respondent herein. A money decree was passed on 19-12-1978. On 19-81982, in E.A. 1507 of 1982, full satisfaction of the decree was recorded. On 21-8-1982, the decree-holder took out an application, I.A. 3471 of 1981 to amend the decree to incorporate the award of interest at the rate of 9 per cent per annum from 29-5-1972 to 19-12-1978 and thereafter at the rate of 6 per cent per annum and to include costs of Rs. 267. This application has been allowed by the Court below, following a pronouncement of a single Judge of the Patna High Court in Shyamal Bihari v. Girish Narain, . This revision is directed against the orders of the court below.

2. Mr. S. Desikan, learned counsel for the judgment-debtor, would submit that once full satisfaction has been entered, the decree becomes extinct, the Court becomes functus officio so far as that decree is concerned and thereafter, it is not competent to ask for an amendment of the decree in the manner asked for by the decree-holder. As against this, Mr. M. N. Sundararajan, learned counsel for the decree-holder, would submit placing reliance on the pronouncement in Shyamal Bihari v. Girish Narain, , that the powers of the Court for

amendment of a decree under S. 152, C.P. Code, are wide and the court will not become functus officio with regard to its powers of amendment of decree even though there has been a full satisfaction thereof earlier.

3. The contentions raised by the learned counsel oblige me to make an analysis of the available case law on the subject to find out 9 the correct principle to be applied in contingencies as in the present case. Once a decree gets fully satisfied and discharged, the decree becomes extinct and dead so far as the court is concerned, and unless there is scope for resuscitating the same in accordance with law and it gets resuscitated as such, neither the party could seek nor the Court could indulge in an amendment of such a decree which has be in concerned non best in the eye of law. This appears to me to be the basic principle, which should govern the question of amendment of a decree. When the decree has been wiped out by the full satisfaction and discharge of the same, where is the question of amending it? Amendment presupposes the existence of a decree, which is found to be incorrect or infirm or which is irreconcilable with the judgment, and on those grounds, or on some other analogous ground, amendment is sought for. But when the decree as it stood has become extinct and dead in the eye of law by full satisfaction and discharge of the same, the Court will lack jurisdiction to order amendment of such a decree. It would be a different matter if by due process of law the recording of full satisfaction is nullified and the decree stands resurrected. The question is not one of scope of the wide powers of court to order amendment. The question is as to when the power is available and is to be exercised. Courts are not vested with the powers to exercise them inexpediently leading to incongruous results. To touch and reopen a decree to have the desired amendments incorporated in it, at the instance of a party after the decree has become fully satisfied, discharged and wiped out will certainly lead to incongruous results. The processes which already got completed and rights which accrued there under on the basis of the un amended decree will have to hang in the air and a fresh process on the basis of the amended decree .may be resorted to, to the prejudice and chagrin of the party concerned in the words of Lord Watson in Hatton v. Harris 1892 AC 547 -

"When an error of that kind has been committed it is always within the competency of the court, if nothing has intervened which would render it inexpedient or inequitable to do so, to correct the record in order to bring it into harmony with the order which the Judge obviously meant to pronounce." The intervention could be the very full satisfaction and discharge and thereby the extinction of the decree and apart from the question there is no decree in the eye of law to have it amended, it would be also inexpedient to indulge in amendment. The only remedial measure that may be resorted to is to have the order recording full satisfaction of the decree set aside and deleted by any process known to law, and have the decree resuscitated and then only seek the amendment. Sir John Beaumont in Piyaratana Unnanse v. Wahareke Sonuttara Unnanse 1950 All U 587 (PC), observed : -

"...the inherent jurisdiction vested in every court to ensure that its order carries into effect the decision at which it arrived, provides an exception to the general rule, but it is an exception within a narrow compass."

Hence, the power of amendment of a decree, however wide it may be, is not to be exercised, without circumspection un heedful of the factors which have intervened, making it inexpedient to order amendment.

4. Even if it is a matter to be investigated in the course of execution proceedings, it should be done before the execution terminates in the discharge of the decree. But, after the execution has been closed on the ground that the decree itself has been satisfied, even the matters relating to execution of the decree as such could not be reopened. Such a ratio has been countenanced in Fakruddin Mahomed Ahsan v. Official Trustee of Bengal (1884) ILR 10 Cal 538. The learned Judges observed that if a judgment-debtor desired to show that more money has been levied from him under the execution than was due from him under the decree, the only course open to him was to apply for a review of the order and have the execution proceedings struck off. In Patham Bi v. Mytheen Bibi(1902) Mad LJ 96 it has been countenanced that an amendment of decree after satisfaction has been entered up is a mere nullity unless steps are also taken at the same time to set aside the order recording satisfaction.

5. In Pitam. Lal v. Balwant Singh AIR 1925 All 556, in concurring with Sulaiman J. who constituted the Bench along with him, Daniels J. observed-

"When a decree for money has been finally satisfied and discharged the court is functus officio and can no longer entertain any application for amendment under Sec. 152 C. P. Code."

6. In Munuswami Pillai v. Hussain AIR 1926 Mad 516 Spencer J. adverted to the above pronouncements and countenanced that a court would not be justified in making a correction which involves the payment of a larger sum of money by one party to another, long after satisfaction has been recorded and when nothing remains to be done and the decree has become dead.

7. There are pronouncements of other High Courts, which have taken a contrary view, and. I shall refer to them. In Khudv Mahto v. Bhim Mahto, , a decree for partition had been passed on the basis of the Commissioner's report, and, after the decree, -possession was delivered to the parties on the basis of the Commissioner's report which was a part of the decree. The plaintiff of that suit, thereafter, filed an application under Ss. 151 and 152 C. P. Code for an amendment of the decree on certain grounds. The application was rejected by the Subordinate Judge mainly on the ground that the decree had already been executed. The said order was reversed by the High Court. Narayan J. held that the fact that the decree had been executed is of no importance so far as the question as to whether the amendment prayed for should be allowed or not is concerned; that the amendment ought to be allowed if it is fit to be allowed in view of the provisions of Ss. 151 and 152 of the Code; it being another matter as to how the plaintiff will proceed so far as the execution is concerned after the amendment prayed for is made. With respect to the learned Judge, I am not able to express my concord to this view of his that the Court could be oblivious to the factual and the legal consequences of the decree standing discharged and wiped out.

8. In Beche Lal v. Hem Singh , there was a discrepancy between the judgment and the preliminary decree with regard to the nature of the rights to be sold; the final decree was prepared as per the preliminary decree, execution was' levied; properties were sold and purchased by the decree-holders themselves; who certified full satisfaction of the decree and further, possession was delivered to them. Agarwala J. declined to interfere with the order allowing amendment and meeting the contention that after a decree has been satisfied, the Court becomes functus officio the learned Judge observed (at p. 486) -

"As regards the contention that, after a decree is satisfied, the court becomes'functus officio' it may be conceded that, after a decree has been executed and satisfied, there is an end of the decree in the sense that nothing more remains to be done by way of execution and the court is 'functus officio' in the sense that having executed the decree, it has nothing more to do and its authority is at an end. But the authority, which is so terminated is the authority to execute the decree and not the authority to correct accidental slips and errors or to review its own orders".

I express my inability to follow the above reasoning of the learned Judge, because I do not find advertence to the aspect that by full satisfaction and discharge of the decree, the decree has become dead.

9. In Jai Narain v. Chheda Lal , S. S. Dhavan J. chose to adopt the ratio of Agarwala J, in preference to that, of Daniels J in the Division Bench case pf the same High Court in Pitam. Lal v. Balwant Singh AIR 1925 All 556.

10. In Shyamlal Bihari v. Girish Narain Raj Kishore Prasad J. dealt with a case where the application for amendment of the decree was made before the execution case was dismissed on full satisfaction and the decree became dead and, as a matter of fact, the plaintiff took the objection at the execution stage itself that unless the decree was amended, it could not be executed and it was only after rejection of his objection that he made the application for amendment of the decree, and on that date when it was made, the execution pase was pending. The pronouncements in Pitam Lal v. Balwant Singh AIR 1925 All 556 and Munusami Pillai v. Mahdi Hussain AIR 1926 Mad 516 were adverted to by the learned Judge and distinguished from the facts of the case dealt with by him in the following terms

"It will, therefore, appear from the above discussions, that the two cases relied upon by Mr. Mustafi are of no assistance to him in the present case, for the simple reason that, in each of the above cases, the decree, of which the amendment was sought for, had been fully satisfied and had become dead long before an application for its amendment was made, but were, the application for its amendment of the decree was made when the decree under execution could not be said to be dead, but was quite alive, in that, the sale in execution of the said decree, although held earlier, had not been confirmed till then, and the execution case was then pending as it was dismissed on full satisfaction thereafter". - page 119

The above observations do indicate that the Judge is countenancing the position that if a decree has been fully satisfied, it would become dead and an application for amendment taken thereafter may not be competent.

11. In Narayandas v. Vishnu ., V. R. Newaskar J. dealt with a case where the correction was sought on the ground of clerical mistake in the decree of the trial court, which had persisted in the decree in the second appeal. In the decree of the trial court, the date of the decision of the Rent Controller's court was mentioned as 22-12-1953, when factually it was only 22-12-1952, and that was not disputed. The learned Judge preferred to follow the ratio in Khudu Mahto, V. Bhim Mahto and Bechelal V. Hem Singh,

.

12. The facts of the present case.are different. On the date when the application for amendment was made, the decree stood, fully satisfied and had become dead. Unless that. order recording full satisfaction stands deleted in any manner known to law and the decree resuscitated, it is not possible to indulge i in an amendment of that decree, because on' the one hand there will be an order which has wiped out the decree as such and on the other, there will be another order, which purports to carry out amendments which orders, as countenanced by this court ii, Patham Bi v. Mytheen Bibi (1902) 12 Mad LJ 96, will be a nullity. I should not be understood, to have expressed any opinion on merits with' regard to setting aside the order recording full satisfaction. Admittedly no step has been taken in this behalf, and no proceeding arising there from is before me. When there is no decree on the file of the court below and Which has been completely wiped out, by recording full satisfaction thereof, there is no Question of amending the decree as such. My assessment of the legal position obliges me to follow the principle which I have already expressed above and in this, I find that I have the support of the authorities of this court itself. In this view, I am not able to follow and adopt the ratio of other High Courts, which have expressed a contrary view.

13. There is another aspect which also I must take note of and that is, it does not appear to be the claim of he plaintiff that the judgment in fact awarded the relief's which he sought to introduce by way of amendinents.

That is a matter which would become relevant and germane only in case there could be competent proceedings, so as to effectuate the amendment. But the proceedings taken out themselves were incompetent and without jurisdiction and hence, there is no need to go into this question. In view of the above position, I am not able to sustain the orders passed by the court below and accordingly the revision is allowed. But, there will be no order as to costs.

14. Revision allowed.


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