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Appasa Rowther and ors. Vs. Muhamad Rowthen and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1927Mad435
AppellantAppasa Rowther and ors.
RespondentMuhamad Rowthen and ors.
Cases ReferredChandra Kumar Mukhopadyaya v. Sudhansu Badani Debi
Excerpt:
- - circumstances may very well be imagined in which they were reasonably misled as to the correct survey number in the first instance and nothing may have occurred subsequently until the application for sale put them on the right track. his main and quite sufficient ground, if it be a good ground for dismissing the petition, clearly is that he had no jurisdiction to entertain it and the question therefore is whether such a jurisdiction exists in a case where the decree, although it, may be erroneous, is in conformity with the judgment......decree was passed on 6th november 1920 and the final decree on 10th january 1922. the original decree-holders assigned the decree and the assignee applied for the sale of the mortgaged property. it was then objected by the 6th defendant that the survey number relating to the property was erroneous and the property was therefore misdescribed. the court accepting this contention dismissed the application for sale. then, on 28th july 1923 the decree-holders, including the assignee, petitioned to have the schedules attached to the final decree and also to the plaint, in which the same error occurred, amended. the additional district munsif, in dismissing the application, has assigned two reasons; firstly that it was due to the gross negligence of the decree-holders that they did not.....
Judgment:

Curgenven, J.

1. This Civil Revision Petition is presented against an order by the Additional District Munsif of Palghat refusing to amend the decree in O. S. No. 16 of 1920 on his file. The suit was on a mortgage; a preliminary decree was passed on 6th November 1920 and the final decree on 10th January 1922. The original decree-holders assigned the decree and the assignee applied for the sale of the mortgaged property. It was then objected by the 6th defendant that the survey number relating to the property was erroneous and the property was therefore misdescribed. The Court accepting this contention dismissed the application for sale. Then, on 28th July 1923 the decree-holders, including the assignee, petitioned to have the schedules attached to the final decree and also to the plaint, in which the same error occurred, amended. The Additional District Munsif, in dismissing the application, has assigned two reasons; firstly that it was due to the gross negligence of the decree-holders that they did not discover the mistake earlier; and, secondly, that such a petition did not lie inasmuch as the decree was not in variance with the judgment.

2. As regards the first point I do not think that the mere length of time which elapsed between the commission of the original error and its discovery can ipso facto be taken, as the Additional District Munsif seems to have taken it, as convicting the decree-holders of gross negligence. Circumstances may very well be imagined in which they were reasonably misled as to the correct survey number in the first instance and nothing may have occurred subsequently until the application for sale put them on the right track. I think therefore that this conclusion of the Additional District Munsif is unsupported by adequate evidence. His main and quite sufficient ground, if it be a good ground for dismissing the petition, clearly is that he had no jurisdiction to entertain it and the question therefore is whether such a jurisdiction exists in a case where the decree, although it, may be erroneous, is in conformity with the judgment. There are two cases which have been relied upon by the respondents for an answer to this question in the negative. The first is Parameshraya v. Sesha Giri Appa [1899] 22 Mad. 364 which was Letters Patent appeal heard by three Judges. In that case the judgment of the trial Court, while dismissing the claim entirely contained a finding against the 4th defendant which was unnecessary for the disposal of the suit. The decree as originally drafted merely dismissed the suit without more. The 4th defendant applied for and obtained an amendment of the decree by the insertion of a finding upon the issue against him, avowedly in order that he might appeal against that issue. It was held that the decree was already in conformity with the judgment inasmuch as the substantial effect of the judgment was to dismiss the suit, and the finding upon the issue in question was a mere superfluity. It was accordingly held that the Subordinate Judge who tried the suit had no power to amend the decree. It seems apparent that here there was no question of error such as is contemplated by Section 152, Civil P. C.

3. Similarly in the second case Pichayya v. Subba Rao [1916] 3 M. L. W. 499 the judgment and the decree awarded costs against the defendant whereas according to the award upon which they were based costs were to be recovered out of the estate. Upon an application the trial Court amended the decree into conformity with the terms of the award. Whatever mistake it may be held was committed in drafting the decree in this case it is clear that it was of an entirely different character from that now under consideration and although the judgment of the Bench contains certain rather wide observations about the limitation of the power of the Court to amend the decree when it is already in conformity with the judgment, I think that they must be read in their context and as applied to the circumstances which gave rise to them.

4. For the proposition that Courts have power to amend the decree, even when it is already in conformity with the judgment a number of decisions have been cited. I may refer to Mahaboob Begum v. Lal Begum [1921] 14 M. L. W. 445 Somasundaram Chettiar v. Velusawmy Naicker [1914] M. W. N. 107 and to several Allahabad cases. Pule Bishunatha Rao v. Bramhanand Swami [1918] 16 A. L. J. 749 Azizur Rahman Khan v. Abdul Hai Khan [1920] 18 A. L. J. 501 and a Calcutta case, Chandra Kumar Mukhopadyaya v. Sudhansu Badani Debi : AIR1924Cal895 It will be sufficient, however, for me to follow a similar case recently decided by Devadoss and Waller, JJ., in C. M. P. No. 429 of 1925. That was a case of an alleged error in a survey number occurring in a plaint which was carried into the judgment and decree and was only detected when delivery proceedings were taken. It was held that the mistake might be rectified notwithstanding that the judgment and decree both contained it. Adopting the reasoning employed in that case, which is indistinguishable in its main features from this one, I consider that the Additional District Munsif had jurisdiction to entertain the application.

5. I accordingly set aside the order and remand the petition for a fresh hearing and disposal. If it should appear that the evidence established that the decree-holders were indeed guilty of gross negligence in omitting to obtain the correction at an earlier stage the Court will of course be at liberty to dismiss the application upon that ground.

6. In the circumstances the petitioner must pay the respondent's costs of the petition in both the Courts.


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