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Tadepalli Pitchayya and ors. Vs. Tadepalli Subba Rao and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in34Ind.Cas.787
AppellantTadepalli Pitchayya and ors.
RespondentTadepalli Subba Rao and ors.
Cases Referred and Lakho Bibi v. Salamat Ali
Excerpt:
civil procedure code (act v of 1908), sections 47, 151 to 153, order xx, rule 6, order xlvii, rule 1 - execution proceedings--right of court to review or vary decree--decree on award--decree at variance with award as to payment of costs--jurisdiction of court--amendment of decree--remedy of party. - .....stamp rs. 242-8-0 and commissioner's fee rs. 350. no appeal having been preferred against the decree, the plaintiffs put in an execution petition no. 17 of 1914 to recover the costs rs. 2,087, after deducting rs. 278-4-0 paid by the defendants nos. 11 and 12, and also for possession of item 6 decreed to them. on 1st july 1914, the 2nd defendant and defendants nos. 14 to ] 6 presented petitions, miscellaneous petitions nos. 212 to 214 of 19i4, under sections 151, 152 and 153, civil procedure code, and order xx, rule 6, civil procedure code, asking that the relief embodied in the decree as regards costs payable to the plaintiff should be expunged, as it was not found in the award submitted by the arbitrators. these petitions and execution petition no. 17 of 1914 were heard together.....
Judgment:

1. These are appeals by the sons of the deceased 1st plaintiff in Original Suit No. 21 of 1907 in the Subordinate Court of Masulipatam, against the order passed in Execution Petition No. 17 of 1914 and in Miscellaneous Petitions Nos. 212 to 214 of 1914.

2. The facts are somewhat complicated, but we will endeavour to state them as shortly as possible. One Tadepalli Garudachalam and his minor sons, the present appellants, brought a suit, Original Suit No. 10 of 1899, in the Masulipatam Sub-Court for partition. The parties to the suit referred the matters in dispute to arbitrators and presented a petition, Exhibit Gr, to the Court under Section 506, Civil Procedure Code, on 11th April 1900. The only fact, which it is necessary to state in regard to this reference to arbitration, is that it provided that the costs-presumably the' Court costs-of the plaintiffs and the defendants should be deducted and paid from the 'rasi amount' (joint family funds). On 24th September 1903 an interim decree, embodying the terms of the award of the arbitrators, was passed. It may be mentioned that the interim decree, while it provided 'that the plaintiffs were entitled to get for their share Rs. 40,251 odd and one-fifteenth of the property as per Schedule B attached to the decree, subject to the variations that might have to be made in the final decree upon settlement of accounts left for disposal, and that a Commissioner should be appointed to settle the accounts,' is silent as to costs. A Commissioner was appointed to take accounts, his remuneration being fixed at Rs. 350, which was apparently paid in the first instance by the plaintiffs. The parties having raised objections to the Commissioner's report, a second reference to arbitrators was made on 14th August 1911. Objections were taken by certain of the defendants to the award, which was, however, accepted by the Court and on 5th August 1912 a final decree was passed. The decree directed inter alia that defendants should pay plaintiffs Nos. 2 to 4 their costs amounting to Rs. 2,087. The costs included Rs. 1,225 stamp for the plaint, Pleader's fee Rs. 240, general stamp Rs. 242-8-0 and Commissioner's fee Rs. 350. No appeal having been preferred against the decree, the plaintiffs put in an Execution Petition No. 17 of 1914 to recover the costs Rs. 2,087, after deducting Rs. 278-4-0 paid by the defendants Nos. 11 and 12, and also for possession of item 6 decreed to them. On 1st July 1914, the 2nd defendant and defendants Nos. 14 to ] 6 presented petitions, Miscellaneous Petitions Nos. 212 to 214 of 19i4, under Sections 151, 152 and 153, Civil Procedure Code, and Order XX, Rule 6, Civil Procedure Code, asking that the relief embodied in the decree as regards costs payable to the plaintiff should be expunged, as it was not found in the award submitted by the arbitrators. These petitions and Execution Petition No. 17 of 1914 were heard together and the Subordinate Judge, after taking evidence, ordered that the direction in the decree and judgment about the defendants' payment of the plaintiff's costs of the suit should be struck out, that the execution application should be disallowed in respect of its prayerfor recovery of costs and that it might be renewed as regards the prayer for delivery of item 6. After a careful consideration of the evidence, the Subordinate Judge found that the whole of the plaintiff's costs in the suit were fully paid to him by two payments of Rs. 1,000 and Rs. 2,000 and odd made to him before the passing of the interim decree, and that the only item of costs subsequently incurred, namely the Commissioner's fee, had been paid out of the joint funds of the family of the parties.

3. Mr. Ramadoss for the appellants did not attack this finding, or attempt to show that it was wrong, and we must, therefore, accept it. The argument advanced for the appellants was that the Subordinate Judge had no jurisdiction to expunge the provision as to costs from the judgment and decree. We think that the contention is correct. Order XX, Rule 6, Civil Procedure Code, which declares what a decree should contain and that it should agree with the judgment, has clearly no application. Nor are the respondents entitled to invoke the aid of Sections 152 and 153, Civil Procedure Code. Section 152, Civil Procedure Code, gives a Court the power to amend judgments, decrees or orders, where there has been a clerical or arithmetical mistake, or an error arising from an accidental slip or omission. In the present case the decree is not at variance with the judgment, and the Court has no power to vary or amend a decree when it is in conformity with the judgment, not even if the judgment is erroneous in law and even if the error be apparent on the face of the judgment. See Parameshraya v. Sesliagiriappa 22 M.s 364 and Lakho Bibi v. Salamat Ali (1898) A.W.N. 59. Section 153, which confers a general power on the Court to amend defects and errors in any proceeding in a suit and make all necessary amendments for the purpose of determining the real question at issue between the parties, has obviously no application.

4. Mr. Ramesam relies on Section 151, Civil Procedure Code, and contends that, when the ends of justice require it, the Court has an inherent power to make such orders as it may deem proper in order to prevent an abuse of the process of the Court. It is suggested that the direction in the judgment as to the payment of costs, which was embodied in the decree, was made under a misapprehension by the Subordinate Judge, and that it only referred to the costs incurred at the final hearing on 3rd May 1912 and 5th August 1912, when the objections raised by defendants Nos. 18 and 19 to the arbitrator's award were dealt with and that the attention of the Sub-Judge was not drawn to the provision in Exhibit G as to costs. It is not, however, permissible to speculate as to what the Subordinate Judge meant by his order that the defendants should pay plaintiffs' costs, which must be taken to refer to the costs in the suit. We do not think that the lower Court had power under Section 151, Civil Procedure Code, to expunge the order as to costs from the judgment and decree. A party to a suit, who has not appealed against the decree or applied for review of judgment, cannot be allowed in execution proceedings to contend that the judgment and decree are erroneous and to ask that they should be amended or corrected. This is in fact what has happened in this case. The Subordinate Judge was really reviewing his predecessor's judgment, which he had clearly no power to do. We consider that the only course open to the respondents, when they discovered the erroneous direction as to costs in the final decree, was to apply under Order XLVII, Rule 1, Civil Procedure Code, to the lower Court for review of judgment, or to appeal against the decree. In view, however, of the Subordinate Judge's finding that the plaintiffs have already recovered their costs in the suit it would be an abuse of the process of the Court to allow the plaintiffs to recover them again in execution. We, accordingly, intimated at the hearing that the petitions might be amended and treated as applications for review, provided the necessary Court-fee was paid.

5. We, therefore, subject to such payment within one week in this Court of the necessary Court-fees, treat the Miscellaneous Petitions Nos. 212 to 214 of 1914, filed in the lower Court, as a consolidated petition for review, excuse the delay in the presentation of the review, and grant the same. The result is that the final decree in the suit is modified by substituting the words ' all costs incurred by both parties to come out of the estate' for the words the defendants do pay plaintiffs Nos. 2 to 4 their costs amounting to Rs. 2,087-0-0.'

6. It is conceded that the plaintiffs are entitled to recover their share of the general stamp paid, Rs. 242-8-0, and can execute the decree as to costs to this extent.

7. We, accordingly, modify the Subordinate Judge's order on Execution Petition No. 17 of 1914, which disallowed entirely the plaintiffs' claim for recovery of costs, by allowing it to the extent of plaintiffs' proportionate share of the above amount of Rs. 242-8-0 and permitting the plaintiffs to renew the execution application both for that amount and for the recovery of possession of item 6. There will be no order as to costs in the appeals.

8. Mr. Ramesam requests us to include the stamp duty (which we have asked him to pay on the consolidated petitions treating them as a review petition) in the costs direjted to come out of the estate, but seeing that his clients greatly delayed the filing of the petitions and were, therefore, guilty of laches, and that the petitions are, as a matter of grace, treated as a review petition, we decline to do so and direct his clients themselves to bear the duty. If the stamp duty is not paid, the appeals will be decreed, the Execution Petition No. 17 of 1914 being wholly allowed and the Petitions Nos. 212 to 214 being dismissed.


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