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Hemanta Kumar Ghose and ors. Vs. Rajendra Mondal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1935Cal619,158Ind.Cas.436
AppellantHemanta Kumar Ghose and ors.
RespondentRajendra Mondal and ors.
Cases ReferredLal Brij Narain v. Tejbal Bikram Bahadur
Excerpt:
- .....into ten groups and ten sets of appearances were entered in the trial court. the subordinate judge decreed the suit in full with costs. in the decree that was prepared the costs allowed to the plaintiffs were shown but the costs incurred by the defendants for pleaders' fees were not entered therein as required by order 20, rule 2, clause (2), civil p.c. against the said decree only 12 of the defendants preferred an appeal to this court out of whom ultimately 9 appellants succeeded with the result that the suit stood dismissed as against them with costs. on 15th september 1930 the successful appellants who are the opposite parties to this rule, made an application to the trial court for amending the decree by inserting pleaders' fees therein. no notice of this application was served.....
Judgment:

Nasim Ali, J.

1. This Rule raises a question of procedure. The facts which give rise to this Rule and do not admit of any dispute are these: The petitioners instituted a suit in the Court of the Subordinate Judge of Khulna against the opposite parties and other persons for establishment of their title and recovery of possession of a large quantity of land in the year 1920. The contesting defendants divided themselves into ten groups and ten sets of appearances were entered in the trial Court. The Subordinate Judge decreed the suit in full with costs. In the decree that was prepared the costs allowed to the plaintiffs were shown but the costs incurred by the defendants for pleaders' fees were not entered therein as required by Order 20, Rule 2, Clause (2), Civil P.C. Against the said decree only 12 of the defendants preferred an appeal to this Court out of whom ultimately 9 appellants succeeded with the result that the suit stood dismissed as against them with costs. On 15th September 1930 the successful appellants who are the opposite parties to this Rule, made an application to the trial Court for amending the decree by inserting pleaders' fees therein. No notice of this application was served upon the petitioners or their pleader and an ex parte order was made by the Court on 19th September 1930 allowing the amendment prayed for and directing that 6 sets of pleaders' fees amounting to Rs. 1,500 should be paid by the petitioners to the opposite parties. On 16th November 1933 a notice was served upon some of the petitioners calling upon them to show cause why the said decree for costs should not bo executed against them. On 19th December 1933 the petitioners made an application before the Subordinate Judge under Sections 151 and 152 of the Code praying inter alia that the order directing the amendment should be set aside. The Subordinate Judge by his order dated 5th October 1934 held that the amount of pleaders' fees entered in the decree was contrary to the rules regarding costs. He however dismissed the petitioners' application on the ground that the executing Court had no jurisdiction to go behind the decree and that the proper remedy of the petitioners was by way of appeal or review. The petitioners thereupon obtained the present Rule. Now it has been stated above that the decree was amended by the Subordinate Judge without giving any notice to the petitioners. It is true that under the present Code no notice is necessary but it would be unfair to allow a decree to be amended without an opportunity being given to the party who will be affected by the amendment. In Bibi Tasliman v. Harihar Mahto (1905) 32 Cal 253, Maclean, C.J., observed:

I think the Court has an inherent power to deal with an application to set aside an order made ex parte and to set it aside upon a proper case being substantiated.

2. The Subordinate Judge therefore on his own findings had power to set aside the ex parte order. It is however contended by the advocate for the opposite parties that as this order has now been incorporated in the decree, the only remedy open to the petitioners was to appeal against that decree. The obvious answer to this contention is that where the Court can amend the decree, the proper course is to apply for amendment and not to appeal. Omission to appeal does not bar an application for amendment: see Mirza Akbar Ali v. Mukhdoom Buksh (1875) 25 WR 63 at p. 64 and Sara Bi v. Hamid Cassim, 1927 Rang 57. Now the only cases in which the decree can be amended by the Court which passed it are as follows: (1) Where there has been a clerical or arithmetical mistake or an error arising from an accidental slip or omission (Section 152, Civil P.. C); (2) where the Court itself finds its decree as drawn up does not correctly state what was the Court actually decided and intended to decide, provided the amendment can be made without injustice or in terms which preclude injustice: see the observations of Romer, J., in Ainsworth v. Wilding (1896) 1 Ch D 673, of Cotton, L.J., Lindley, L.J. and Bowen, L.J., in In re Swire (1885) 30 Ch D 239 quoted with approval in Soma Sundaram v. Subramaniam, 1926 PC 136 and Midnapore Zamindari Co., Ltd. v. Abdul Jalil Mia, 1933 Cal 627. It is true that an executing Court cannot go behind the decree, but where the executing Court and the Court which passed the decree are one and the same, the Court can amend the decree in the course of the execution: see the observations of Mitter, J., in Midnapore Zamindari Co., Ltd. v. Abdul Jalil Mia, 1933 Cal 627 referred to above. But where the decree of the first Court is confirmed or reversed, it is superseded by the decree of the appellate Court and the only Court that can amend the decree thereafter is the appellate Court: see Lal Brij Narain v. Tejbal Bikram Bahadur (1909) 32 All 295. Now the order of this Court in the appeal preferred by the opposite parties was that they were to get their costs from the petitioners. Where the judgment awards costs to a party it implies costs allowed by the rules. If the decree includes costs which are not permissible under the rules, the decree is not in accordance with the judgment and does not correctly state what the Court intended. It is therefore the duty of the Court to correct it so as to make it in conformity with the judgment. The advocate for the opposite parties did not dispute the contention of the petitioners that the pleaders' fees included in the decree by the amendment were not in accordance with the rules. It is therefore clear that the amended decree does not correctly state what the Court actually decided or intended.

3. For the reasons stated I make the rule absolute, set aside the order of the Judges dated 19th September 1930 and 5th October 1934. I also set aside that portion of the decree in question which embodies the order of the Subordinate Judge dated 19th September 1930 and which has been put into execution by the opposite parties. This will no however preclude the opposite parties from taking such steps according to law as are open to them for getting the decree amended in accordance with the judgment. The petitioners are entitled to get their costs from the opposite parties; hearing fee is assessed at five gold mohurs.

Henderson, J.

4. The main point of controversy before us was whether we have power to interfere with this matter in revision or whether the petitioners ought to have appealed. Dr. Mukherjee did not contend that a party aggrieved by an amended decree cannot appeal against it. He however argued that in this case there was nothing done which would entitle either party to appeal. The original decree was entirely in favour of the plaintiffs. No doubt if the Subordinate Judge had amended it and substituted for it some order against the plaintiffs in favour of the defendants, it would have been open to the plaintiffs to appeal. But in the present case nothing of the kind was done and it is only by using language in the loosest possible way that the order of the Subordinate Judge, which is the subject-matter of this rule, can be described as an amendment of the decree. In fact the decree of the Subordinate Judge had vanished altogether and there was nothing to amend when it had been displaced by a decree of this Court passed on appeal. All that the Subordinate Judge was asked to do was to put into his original decree certain figures which would assist the office to assess the coats which had been awarded to the opposite party by the decree of this Court. In my judgment it cannot be disputed that there was nothing which would give anybody a right of appeal.

5. In the second place I am unable to see how any question of principle was involved before the Judge. In their petition the opposite parties never claimed Rs. 1,500. They simply wanted to assess the amount to which they were entitled under the rules. In these circumstances I cannot understand why the opposite parties have seen fit to attempt to uphold the order on a mere technicality. It was obviously to the interest of both sides to have a proper order passed by consent, as the only thing that had to be done was a matter of calculation and no question of principle was involved at all. In the third place supposing that there is any question of principle involved or any difficulty in interpreting the rules, that is a matter which has to be decided by this Court and the Subordinate Judge has no jurisdiction to decide it one way or the other. I am far from being satisfied that it was even necessary to enter any figures in the decree of the lower Court which has now been superseded. All that was necessary was for the opposite party to collect such materials as are required to enable the decree of this Court to be executed. For these reasons I am clearly of opinion that the petitioners have no right of appeal and their only remedy was by way of revision. On the merits I am entirely in agreement with my brother that the rule should be made absolute in the terms indicated by him.


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