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Sm. Chandra Kala Devi and ors. Vs. Central Bank of India Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.A.O. No. 73 of 1955
Judge
Reported inAIR1959Cal153,62CWN881
ActsCode of Civil Procedure (CPC) , 1908 - Section 152 - Order 20, Rule 3
AppellantSm. Chandra Kala Devi and ors.
RespondentCentral Bank of India Ltd.
Appellant AdvocatePanchanan Chowdhury and ;Nirmal Chandra Chowdhury, Advs.
Respondent AdvocateAmarendra Mohan Mitra and ;Arunendra Nath Basu, Advs.
Cases ReferredManohar Chandra v. Sudhi Priya
Excerpt:
- .....of 11 cal lj 81 (e), mookerjee and vincent jj., held that the subordinate judge who had amended a decree originally made in his court but subsequently modified on appeal by consent of parties in this court had no jurisdiction to make any order for amendment so as to affect what was now the decree of this court. it should be noted that in that case the application for amendment which was allowed by the lower court was made under section 206 of the code of civil procedure of 1882, which corresponds to the present section 152 of the code of civil procedure. their lordships further observed that the said view which was taken by their lordships was well founded and was supported by a long series of decisions which were mentioned in the judgment of this court in the case of 6 cal lj 542 (f)......
Judgment:

S.R. Das Gupta, J.

1. This appeal arises out of an objection raised to an application for execution of a decree. The appellants before us were the heirs of the deceasedjudgment-debtor against whom a decree for recovery of money was passed. That decree was put into execution and the Execution Case was numbered 85 of 1953. The amount for which the execution proceedings were originally started was Rs. 3077-15 which included costs of the suit and costs of the certified copy of the decree. I should have mentioned that against the said original decree there had been an appeal to this Court which was dismissed. The present Execution Case was started after such dismissal. On the 16th July 1954, after the original application for execution was filed, a petition was presented to the Subordinate Judge, Asansol, by the decree holder for an amendment of the execution petition by including a prayer for Rs. 932/- as the added interest. In that petition it was stated that the original decree was amended on the 10th July, 1954, by the said court and in accordance with that order of amendment the execution petition should also be amended. It appears that on the 10th July, 1954, that is, after the appeal to this court against the original decree had been dismissed the decree-holder filed a petition before the lower court for amendment of the said decree of the allegation that in the decree that was drawn up interest was allowed up to the institution o the suit and no subsequent interest was mentioned in the said decree, although in the judgment interest was allowed at the rate of six per cent from the date of the loan up to the date of realisation. The lower court thereupon allowed the amendment asked for and by its order No. 35 dated the 10th July, 1954, the decree was amended by allowing interest at 6 per cent from the date of the institution of the suit to the date of the realisation in addition to the interest already allowed. It should be mentioned that in the decree as drawn up it was stated amongst others that the amount decreed was Rs. 2682-10, which, we are informed, includes interest up to the date of the institution of the suit, with interest thereon at the rate of nil per cent per annum from the date of the institution of the suit to the date of the realisation of the said sum. It is apparent from the wordings of the said decree that there was a clerical mistake which needed correction and that correction was made by the lower court by its order dated the 10th July, 1954. The appellant filed an objection under Section 47 of the Code of Civil Procedure to the present application for an amendment after execution petition. The present appeal has been filed to this Court. Against the said order there was an appeal to the District Judge and the appeal was also dismissed. The present appeal has been filed to this Court against the said order of the Additional District Judge of Burdwan.

2. Before us it is contended that the court which amended the decree had no jurisdiction to do so inasmuch as the original decree having been appealed from and a final order having been passed in the said appeal, the decree had merged in the appellate court's decree and the original court ceased to have any jurisdiction over it: That being so, the order of amendment made was also without jurisdiction.

3. On behalf of the respondent it was urged before us that the court had jurisdiction under Section 152 of the Code of Civil Procedure to correct a clerical or arithmetical mistake appearing in judgments, decrees or orders and such correction can be made at any time. The learned Advocate for the respondent contended before us that the court had under Section 152 of the Code of Civil Procedure jurisdiction to make such corrections even though the original decree had been the subject-matter of an appeal and a final order had been passed in the said appeal. 'In support of that proposition he cited two decisions of this Court, being the case of Ahidhar Ghosh v.Secretary of State : AIR1933Cal335 , and the case of Kalidas Rakshit v. Saraswati Dassi : AIR1943Cal1 . He also relied upon a decision of the Allahabad High Court reported in the case of Chintra Mani v. Debi Prasad : AIR1934All971 .

4. On behalf of the appellants reliance, was placed on the decision of the Judicial Committee in the case of Brij Narain v. Tejbal Bikram Bahadur 14 Cal WN 667 (D), and on a number of cases decided by this Court, being, the cases of Rameswar Malia v. Bhaba Sundari Debi, 11 Cal LJ 81 (E); Srigobind Sing v. Gangatri Pershad Singh, 6 Cal LJ 542(F); Uma Sundari Devi v. Bindu Bashini, ILR 24 Cal 759 (G). The learned Advocate for the appellants also relied upon the decision of the Bombay High Court in the case of Hussain Sab v. Sitaram Vighneshwar, : AIR1953Bom122 .

5. It seems to me that this Court has systematically held that after a decree has been appealed from and the appellate court has passed a final order thereon and had confirmed the same, the original court which passed the decree loses all jurisdiction over the said decree. It has also been held that the appellate court in that case is the only court competent to make an order under Section 152 of the Code of Civil Procedure and the original court which passed the decree had no jurisdiction to do so. In the case of 11 Cal LJ 81 (E), Mookerjee and Vincent JJ., held that the Subordinate Judge who had amended a decree originally made in his court but subsequently modified on appeal by consent of parties in this Court had no jurisdiction to make any order for amendment so as to affect what was now the decree of this Court. It should be noted that in that case the application for amendment which was allowed by the lower Court was made under Section 206 of the Code of Civil Procedure of 1882, which corresponds to the present Section 152 of the Code of Civil Procedure. Their Lordships further observed that the said view which was taken by their Lordships was well founded and was supported by a long series of decisions which were mentioned in the judgment of this Court in the case of 6 Cal LJ 542 (F). In the said case of Srigobind Singh v. Gangatri Pershad Singh (F) decided by Brett and Mookerjee JJ., it was held that it could not be and has not been disputed by the opposite party that the Subordinate Judge had no jurisdiction to make an order for amendment of the decree after an appeal against the said decree was filed and it was dismissed by the appellate court. In that case a suit was instituted in the court of the Subordinate Judge of Muzaffarpur and was decreed. An appeal was preferred by some of the defendants, but it was dismissed by the District Judge on the 18th June 1906. An application was thereafter made by some of the judgment-debtors who had not appealed against the decree of the Subordinate Judge for amendment of the decree. The application was made to the Subordinate Judge of Mazaffarpur on the ground that the property directed to be sold by the decree was erroneously described. The description given in the decree was that a certain share called Pokta share of the property mortgaged should be sold. The contention of the petitioner was that the share in question ought not to be described as 'Pokta.' The Subordinate Judge allowed this application on the 27th November 1906 and amended the decree. Against this decision an appeal was preferred to this Court which came to be considered by their Lordships Brett and Mookerjee JJ. Before their Lordships it was also argued that the Subordinate Judge had no jurisdiction to make the order in question inasmuch as his decree had been confirmed on appeal by the? District Judge and that the only court which was competent to dealwith the matter was the court of the District Judge Muzaffarpur. That contention was accepted by their Lordships and their Lordships made the Rule absolute. It should be noted that the application in that case also was made under Section 206 of the Code of Civil Procedure 1882, which corresponds to Section 152 of the Code of Civil Procedure, 1908. In that judgment reference was made to another decision of Division Bench of this Court ILR 24 Cal. 759 (G) ). There also the same view was taken, namely, mat an order of dismissal of an appeal being a final determination and adjudication on the questions raised in the appeal is a decree, and when an appeal is dismissed under Section 551 of the Civil Procedure Code, the effect practically was to make the decree which was confirmed the final decree to be executed in the suit, and the High Court making such order had power to amend the decree of the lower court which had in effect been confirmed by it so as to bring it in conformity with the judgment which was also confirmed. Their Lordships in the concluding part of their judgment observed as follows:

'It is an admitted fact that the decree of the District Judge is not in conformity with his judgment. The decree simply directs that the appeal be decreed without specifying in any way the relief given by it. In the judgment it was distinctly held that the plaintiff had proved her title to and possession of the land (plot kha) on which a privy had been built, and that the defendant must remove that privy and vacate the land. We, therefore, direct that the decree of the District Court, setting aside the decree of the first court, be amended; and that it be declared that the plaintiffs title to the land (plot kha) on which a privy has been built is established, and that she is entitled to possession thereof, and that the defendant must remove the privy and vacate the land.'

These decisions to my mind show quite clearly that so far as this Court is concerned the view taken is that once a decree has been finally dealt with on appeal, the court which originally passed the decree ceases to have any jurisdiction to amend it.

6. Mr. Mitter appearing on behalf of the respondent referred us to two recent decisions of this Court being the case of : AIR1933Cal335 and the case of : AIR1943Cal1 in support of his proposition that the original court still retains jurisdiction under Section 115 of the Code of Civil Procedure to amend its own decree. In the case of : AIR1933Cal335 , what happened was that after a judgment of the High Court had been affirmed by the Privy Council the appellant to England discovered for the first time that in the High Courtdecree against him the item of court-fees paid by the other side on their memorandum of appeal to the High Court had been included twice in the costs and he thereupon made an application to the High Court for having the decree amended by debiting the costs overcharged. The matter at first came before a Bench composed of Mukherji and Guha, JJ. and by an order dated 23-3-1932, their Lordships adjourned it with directions to the office to

'report whether there is any precedent for an application of this character being entertained by a Division Bench of this Court when that application was in connection with a case in which the decision of this Court has been affirmed by the Judicial Committee.'

Thereupon the Deputy Registrar placed before the court an order dated 31-8-1931, passed by C. C. Ghose, A. C. J. in Bhupendra Narayan Sinha v. Rajeswar Prasad, P. C. A. Nos. 23 and 24 of 1927(I). In the last mentioned case after the Privy Council had given its decision it was found on behalf of the appellant to England that no Vakalatnama was filed in the High Court in the First Appeal out of which the Privy Council Appeal had arisen.

No Certificate of costs in respect or that appeal was, therefore, granted. An application was thereupon made by the appellant to England stating that he had in fact appeared and had been represented by three Advocates. This fact was not disputed by the other side and thereupon C. C. Ghose, A. C. J. and Patterson, J. passed an order that in the circumstances stated it was quite clear that the omission to file the vakalatnama on behalf of the plaintiff was due to inadvertence, and that the appearance of the learned Advocates for the plaintiff in the said appeal may be recognised and regularised. On receipt of this report from the Deputy Registrar Mukherji and Guha, JJ. passed the following order :

'In view of the precedent which the office has referred to in its note, dated 6-4-1932, this petition is sent to the Privy Council Department, so that it may be placed before the Bench presided over by the Hon'ble the Chief Justice taking Privy Council matters.'

The matter then came up before the Hon'ble the Chief Justice and Costello, J. and the following order was passed. 'Let the decree of this Court be amended by correcting the mistake as prayed for in the petition.'

7. Mr. Mitter appearing on behalf of the respondent strongly relied upon this decision in support of his said contention. It seems to me that the order in Ahidhar Ghosh's case (A) was made in view of the precedent which the office referred to in its note. It does not appear that the matter was argued before their Lordships and the points which arenow raised before us were ever raised or agitated before them. In any event, it is quite clear that the decisions to which I have referred were not placed before their Lordships and their Lordships did not consider the same. The Order was made on the office report which referred to a previous case by way of precedent in which on the facts as mentioned by me it was ordered that the appearance of the learned Advocates for the plaintiff in the said appeal may be recognised and regularised. This decision, in my opinion, does not in any way take away the force of the series of decisions of this Court in which it was clearly held that the original court under the circumstances mentioned did not have any jurisdiction to amend its own decree. The next case which was referred to by Mr. Mitter is the case of : AIR1943Cal1 . In that case there was a prayer in the plaint for mesne profits. The learned Subordinate Judge dealt with that case in his judgment so far as it related to the said prayer and held

'the plaintiffs are entitled to get mesne profits from them for the period of dispossession, that is Jaistha 1325 to the date of recovery of possession. But at present there will be a decree for mesne profits to the date of the institution of the suit.'

The decree was drawn up exactly in the same terms and there was an appeal against the said decree, but the judgment and decree of the learned Judge were affirmed on appeal. Thereafter on an application by plaintiff No. 4 the learned Judge by an order dated 22-6-1932 passed in the suit appointed a Commissioner and directed the Commissioner to ascertain mesne profits pendente lite till the 8-4-1931 when possession was taken by the plaintiff in execution of the decree for possession. This order, as already mentioned, was passed after this Court had on appeal affirmed the original decree. Thequestion arose whether or not the learned Judge was , justified in making that order. Mitter, J., who delivered judgment in that case held that the learned Subordinate Judge could make such an order. His Lordship gave a number of reasons for his aforesaid conclusion, one of which was that it is quite clear from the judgment and decree of the learned Subordinate Judge that the plaintiff's claim for mesne profits pendente lite and thereafter as made in the plaint was not rejected. On the other hand, His Lordship held, their right to the same was expressly declared and the court exercised its discretion under Order 20, Rule 12(1), Clause (b) and instead of leaving the matter of assessment of mesne profits up to the date of the institution of the suit to a later proceeding in the suit, assessed the same at that time. The court according to Mitter, J. reserved the power to assess mesne profits pendente lite and thereafter till restoration of possession to the plaintiffs at a later stage and this was made manifest by the use of the words 'at present' both in the Judgment and the decree. The other reason given by his Lordship was that the decree in question could be treated as a final decree in respect of mesne profits up to the date of the institution of the suit but a preliminary decree for mesne profits for the period commencing from the date of the institution of the suit till recovery of possession. The last part of the decree according to Mitter J. conformed to the terms of a preliminary decree, for the right of the plaintiffs is declared but the assessment of the actual amount for that period is left over to a later stage of the suit. It appears to me that the said case of : AIR1943Cal1 was decided on an entirely different basis. The facts of this case were also different from the facts of the present case. It is true that in one part of his Lordship's judgment there is an observation to the appeal that the omission of an express direction in terms of Order 20, Rule 12,' Sub-rule (1), Clause (c) in that decree was, therefore, an accidental one and could be supplied at any time by the Court, but his Lordship immediately thereafter proceeded to say as follows:

'No doubt an application under Section 152 of the Code of Civil Procedure to supply the said omission should have been made to this Court, for on the confirmation of the decree of the learned Additional Subordinate Judge by this Court the only decree in existence in the eye of law was the decree of this Court, but this technical defect is of no moment, for who can supply an omission which as we have pointed out is an obvious one.'

This view accords with the view taken by this Court in the earlier decisions to which I have referred. It should also be noted that none of those cases to which I have referred in this judgment were placed before their Lordships in the said case of Kalidas Rakshit v. Sarasvati Dassi, (B) and their Lordships did not consider the same. In my opinion, it cannot be said that Mitter and Khundkar JJ. took any view contrary to what was taken in the earlier decisions of this Court. The other case on which Mr. Mitter relied was a decision of the Allahabad High Court in the case of : AIR1934All971 . That case no doubt supports Mr. Mitter's contention, but I am unable to accept the view taken therein. I agree with the view taken by this Court in the cases of 6 Cal LJ 542 (F) and Peary Mohan v. Mohendra Nath, 4 Cal LJ 566 (J). In my opinion, therefore, the contention of the appellants on this point should prevail. I hold that the Subordinate Judge had no jurisdiction to amend the decree after the same had come up in appeal before this Court and had been dismissed therein.

8. The amendment of the original petition for execution must also be held to have been made without jurisdiction.

9. Mr. Mitter then contended before us that this is not a case where the court below had no jurisdiction, but it is a case where there has been an erroneous exercise of jurisdiction. He referred us to the case of Manohar Chandra v. Sudhi Priya 41 Cal WN 1330 (K). I am unable to accept the said contention of Mr. Mitter. In my opinion after a decree has been appealed from and the appeal court has made a final order in the said appeal either allowing or dismissing the appeal, the lower court ceases to have all jurisdiction over the matter. The decree in effect becomes the decree of the appellate court and the jurisdiction to amend the decree is in the appeal court and not in the court below. The lower court becomes functus officio in the matter. In my opinion, this contention of the learned Advocate for the appellants must fail.

10. The question, however, is what is to be done in this matter. The authorities to which I have referred have laid down that this Court which made the final order in the original appeal still retains the jurisdiction to amend the decree and in fact this Court is the only Court which can make Such an order of amendment. It is quite clear that the mistake in the decree as drawn up in not allowing interest from the date of the institution of the suit to the date of the realisation of the said sum was a clerical mistake which can be rectified and should be rectified under Section 152 of the Code of Civil Procedure.

11. We, therefore, make an order in this appeal correcting the said mistake and we order that the decree be amended by making provision for interest at the rate of 6 per cent per annum from the date of the institution of the suit to the date of the realisation of the said sum. In other words we order that the decree be amended in the same manner as it was done by the order of the lower court dated 10-7-1954.

12. Let the amendment be incorporated in the certified copy of the decree which is already on the record and after amendment is effected the decree-holder will be entitled to apply to the court below for an order for amendment of the original application for execution.

13. Having regard to the special circumstances of this case we direct that each party will pay and bear its own costs in this appeal.

N.K. Sen, J.

14. I agree.


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