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Lakshmi Thankachi Vs. N. Narayana Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1176 of 1967
Judge
Reported inAIR1972Mad116; (1971)2MLJ429
ActsCode of Civil Procedure (CPC), 1908 - Sections 115, 151, 152 and 153
AppellantLakshmi Thankachi
RespondentN. Narayana Pillai and ors.
Cases ReferredS. S. Khanna v. F. J. Dillon
Excerpt:
.....to the high court against the decree so amended either directly or after an intermediate appeal.; held, on a plain reading of the phraseology in section 115, it is clear that the appeal contemplated by the section of exclusion of its application is one from the adjudication in the particular proceeding which is sought to be revised. the reference in the section to any case includes any proceeding in the nature of a petition to amend the final decree. any case decided would mean a decision in the particular proceeding. in the instant case, the petition is to attend the final decree. no appeal would lie from that order. that will suffice to enable the petitioner to prefer a revision, subject, of course, there being an error of jurisdiction or material irregularity. the fact that an..........mortgagee-defendants under sections 151, 152 and 153 of the civil p. c., for the amendment of the final decree. the suit was instituted by the petitioner for redemption of a mortgage. a preliminary decree was passed on 20th december 1965, which directed allotment of the southern 5/8th share to the petitioner and the northern 3/8th share to the defendants 7 and 8. this was done on a joint endorsement of the concerned parties. pending an application made by the petitioner for passing a final decree, the mortgagee-defendants applied for appointment of a commissioner to value the improvements. according to them, they were entitled to the value of the improvements from 1886, but the petitioner admitted the same only for the period subsequent to 1920. in view of this controversy, the munsif.....
Judgment:
1. The petition is to revise an order of the Principal District Munsif of Padmanabhapuram on an application made by the mortgagee-defendants under Sections 151, 152 and 153 of the Civil P. C., for the amendment of the final decree. The suit was instituted by the petitioner for redemption of a mortgage. A preliminary decree was passed on 20th December 1965, which directed allotment of the southern 5/8th share to the petitioner and the northern 3/8th share to the defendants 7 and 8. This was done on a joint endorsement of the concerned parties. Pending an application made by the petitioner for passing a final decree, the mortgagee-defendants applied for appointment of a Commissioner to value the improvements. According to them, they were entitled to the value of the improvements from 1886, but the petitioner admitted the same only for the period subsequent to 1920. In view of this controversy, the Munsif appointed a Commissioner by an order dated 13th July 1966, by which he directed the Commissioner to report as to the value of the improvements from 1866 down to 1920, and separately for the subsequent period. This the Commissioner reported, but he also totalled up the figures referable to both the periods and gave the consolidated amount. The earlier application for passing a final decree was then taken up and in November 1966, a brief order was made which simply said that there would be a decree for partition and redemption in terms of the report of the Commissioner and that it was adopted. Accordingly, a final decree was drawn up which directed the petitioner to pay the mortgagee-defendants Rs. 2512-50 and the co-mortgagors Rs. 2632-35. The direction was made covering only the period subsequent to 1920. Thereafter, the mortgagee-defendants applied, as we said at the outset, for amendment of the final decree. This application was allowed. The amendment sought for was for the inclusion in the final decree the value of the improvements for the period from 1866 to 1920. The petition under Section 115 of the Civil P. C. is to revise this order.

2. Before Sadasivam, J. the mortgagee-respondents took a preliminary objection to the maintainability of the revision petition, on the ground that the petitioner had a right of appeal from the amended decree. Noticing a conflict of judicial decisions in this court, the learned Judge referred the petition to be disposed of by a Division Bench. In doing so, he propounded the question whether an order of a subordinate court amending a decree or judgment under Ss. 151 and 152 of the Civil P. C. could be revised under S. 115 of the Civil P. C., though an appeal could be preferred to the High Court against the amended decree. The conflict was between Narayanasami v. Natesan, (1893) ILR 16 Mad 424 & Viswanathan Chetti v. Ramanathan Chetti, (1901) ILR 24 Mad 646, the later taking the view that the revision in such circumstances would not lie. This view found favour with Horwill, J. in Simhagiri Dora v. Zamindarini of Chemudu. whom

Viswanatha Sastri, J. followed in Pullappa Naidu v. Venkatanarappa Reddi, . With due respect, we are of the view that on a plain reading of the phraseology of Section 115, only one view is possible to wit, that the appeal contemplated by the section for exclusion of its application is one from the adjudication in the particular proceeding which is sought to be revised. The reference in the section to "any case" includes any proceeding in the nature of the petition in this case to amend the final decree. "Any case decided" would mean a decision in the particular proceeding, that is to say, in the instant case, the petition to amend the final decree. It is not disputed that no appeal would lie from the order. That will suffice to enable the petitioner to prefer a revision, subject, of course, there being an error of jurisdiction or material irregularity. The fact that an appeal would lie from the amended final decree is to our minds besides the point. Section 115 does not say that apart from the decision in the case, of which a revision is asked for by reason of the order being incorporated in the final decree an appeal lies, that would exclude the application of the section. If that were the intention of the section, more words would be required. The view we have taken of the section as it reads also receives support from S. S. Khanna v. F. J. Dillon, . After elucidating the expressions "case" and "case decided," the Supreme Court observed:

"If an appeal lies against the adjudication directly to the High Court or to another court from the decision of which an appeal lies to the High Court, it has no power to exercise its revisional jurisdiction. But where the decision itself is not appealable to the High Court directly or indirectly, exercise of the revisional jurisdiction of the High Court would not be deemed excluded.

That at once ends the conflict pointed out by Sadasivam, J. and the prevailing view is and ought to be that where no appeal lies from the adjudication in a particular proceeding this court's jurisdiction under Section 115 is not excluded. We hold, therefore, that the petition is maintainable.

3. It is not in controversy before us that the Munsif at no time decided as to the period or periods in respect of which the mortgagees would be entitled to the value of improvements from the mortgagors. The order appointing the Commissioner merely directed him to ascertain the value of improvements for two periods separately. The Munsif who passed the order in the final decree proceeding does not appear to have applied his mind to the earlier orders that upon that footing the petitioner would be liable for the value of improvements only for the period subsequent to 1920. In the circumstances, it is obvious that there was no clerical mistake and there was no question of bringing the decree in accordance with the judgment, for, as we said, there was no decision at all as to the period in respect of which the petitioner should be made liable for the value of improvements. The order of the court below is, therefore, set aside.

4. If we leave the matter there, we are afraid that an injustice may occur. We consider, therefore, that the application filed by the mortgagees should be treated as one asking the court below to decide the question whether the petitioner would be liable for improvements for the earlier period commencing from 1966 and for that purpose to re-open the final decree. We direct the court below a treat the application accordingly and dispute it of according to law. The petition is allowed. No costs.

5. Petition allowed.


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