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Koralla Buch Lingam Vs. Koralla Satyanarayanamurthi and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in65Ind.Cas.710
AppellantKoralla Buch Lingam
RespondentKoralla Satyanarayanamurthi and anr.
Excerpt:
civil procedure code (act v of 1908,), sections 151 and 152 - amendment of decree by court other than that which passed decree, legality of--transfer of application for amendment of decree, whether valid. - .....been obvious to the district judge that the sub court would have no power to amend the district judge's decree.6. on 2nd november 1920 the subordinate judge amended the final decree of the district judge by ordering the clause relating to mesne profits to be expunged and the plaintiff to refund to the second defendant rs. 776 collected in pursuance of the final decree.7. it is clear from the above fasts that the subordinate judge's order amending in execution the decree of another court was wholly ultra vires and that sections 15l and 152, civil procedure code, which were invoked in the petition gave him no power to make such an order, the decree in question had become final, no appeal had been preferred, no application for review had been filed in time, and there was no reason on the.....
Judgment:

1. The parties to Original Suit No. 33 of 1912, which was a suit for partition, referred their disputes to be settled by three arbitrators who made an award on April 2nd 1913.

2. After this, the 3rd arbitrator divided the properties and reported to the Court on 6th October 1915 and at the foot of his report it was written that both the parties agreed to the matters in that report, and the plaintiff and the first defendant for himself and as guardian of the second defendant signed this statement. In this report the 3rd Panchayatdar apparently exceeded his powers as a single arbitrator by fixing the amount of mesne profits to be paid after the date of the award.

3. On 13th December 1915 the District Judge (Mr. Roy) passed orders on this report but omitted (apparently by oversight) to specifically direct a decree to be drawn up in accordance with the award and the report.

4. But a decree was drawn up and signed by the District Judge's successor Mr. Fernandez on 14th December 1915.

5. Nearly five years later, when a review petition if presented would have been long out of time, an execution petition was put in on 9th August 1920 by the defendants asking for amendment of the decree and for restitution, and after several adjournments the case was transferred by the District Court to the Sub-Court for disposal, although it should have been obvious to the District Judge that the Sub Court would have no power to amend the District Judge's decree.

6. On 2nd November 1920 the Subordinate Judge amended the final decree of the District Judge by ordering the clause relating to mesne profits to be expunged and the plaintiff to refund to the second defendant Rs. 776 collected in pursuance of the final decree.

7. It is clear from the above fasts that the Subordinate Judge's order amending in execution the decree of another Court was wholly ultra vires and that Sections 15l and 152, Civil Procedure Code, which were invoked in the petition gave him no power to make such an order, The decree in question had become final, no appeal had been preferred, no application for review had been filed in time, and there was no reason on the merits to convert an execution application into a review petition, The District Judge's order transferring the petition pending before him to the Sub Court was itself improper and out of order.

8. These alone are sufficient reasons for setting aside the Subordinate Judge's order and we need not deal with the further reason against such interference with the decree, namely, that it was based on the consent of the parties who signed the arbitrator's report.

9. We allow the appeal and set aside the order of the Subordinate Judge dated 2nd November 1920 and we restore the decree of the District Judge dated 14th December 1915. and we direct the respondent to pay the appellant's costs in this Court and the Court below.


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