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Mrs. Alice Maud and anr. Vs. J.C. Galstaun and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal114
AppellantMrs. Alice Maud and anr.
RespondentJ.C. Galstaun and ors.
Cases Referred and Raghunath Das v. Raj Kumar
Excerpt:
- .....the material portion of the judgment of mr. mukhuti which forms the concluding portion of the learned judge's judgment with which we are now concerned in the present rule is as follows:ordered accordingly that the suit be decreed in part with costs on contest against defendants nos. 1 and 2 and ex parte against defendants nos. 3 and 4. the defendants are directed to make over to the plaintiff vacant possession of the disputed promises in fifteen days from this date; on default, the plaintiff will be entitled to recover vacant possession of the same turning out all the defendant and all those who claim through him from the premises, and also to recover from the defendants nos. 1 and 2 the sum of rs. 4,283-13-4 as damages for the period before suit and at bs. 334-8-0 par month from.....
Judgment:

Cuming, J.

1. The facts of the case out of which this rule has arisen are these : The opposite party one J.C. Galstaun brought a suit in 1923 against the present petitioners and certain other persons with regard to a certain house No. 229, Lower Circular Iioad. The present petitioners who are Defendants Nos. 1 and 2, alone contested the suit. The petitioners wore the sub-tenants of one Mussa Ariff Bham, who it was alleged, was the tenant of J.C. Galstaun. The suit was heard and was decreed by Mr. Mohendra Nafch Mukhuti, Subordinate Judge of Alipur, on the 29th June 1925. Almost immediately after the decision of the suit this officer was transferred and the decree when drawn up was signed by another Judge Mr. Asu-tosh Pal. who succeeded Mr. Mukhuti. The material portion of the judgment of Mr. Mukhuti which forms the concluding portion of the learned Judge's judgment with which we are now concerned in the present Rule is as follows:

Ordered accordingly that the suit be decreed in part with costs on contest against Defendants Nos. 1 and 2 and ex parte against Defendants Nos. 3 and 4. The defendants are directed to make over to the plaintiff vacant possession of the disputed promises in fifteen days from this date; on default, the plaintiff will be entitled to recover vacant possession of the same turning out all the defendant and all those who claim through him from the premises, and also to recover from the Defendants Nos. 1 and 2 the sum of Rs. 4,283-13-4 as damages for the period before suit and at Bs. 334-8-0 par month from the date of the institution of the suit to 31st March 1924, and thereafter at Rs. 675 per month until recovery of possession by the plaintiff's. On the plaintiff's recovery of possession the total amount to which he is entitled will be calculated and plaintiff pay the necessary deficit Court-fee. Amounts awarded as costs or damages will bear interest at 6 per cent, per annum.

2. This decree was transmitted to the High Court for execution on the 9th July 1925, and then the plaintiff's asked the High Court to attach certain moveable properties of the judgment-debtor with a view to executing the decree.

3. Defendants Nos. 1 and 2 had meanwhile made over vacant possession to the plaintiff before the expiry of fifteen days allowed by the decree and they raised the objection that as they had given over vacant possession it was, therefore, no longer necessary that there would be any final decree as to damages. They, there fore, contended that they were not liable for the damages as they bad given over possession within fifteen days and on these allegations they asked the Subordinate Judge to recall the certificate which he had sent to the High Court. The learned Subordinate Judge refused to recall the certificate, and on the 14th August 1925, the Subordinate Judge ordered what is described a final decree which was a decree for the amount of damages, etc., to which the Defendants Nos. 1 and 2 are liable to be drawn up. Defendants Nos. 1 and 2 had appealed to the High Court on the 9th November 1925, against the preliminary decree so far as the question of costs was concerned.

4. Meanwhile, the question of the attached moveables came up before my learned brother Mr. Justice Buckland in the execution proceeding's in the High Court. Here again, the Defendants Nos. 1 and 2 raised the question that having given over vacant possession they were not liable for damages and, therefore, their property was not liable to be attached. This contention seems, to have found favour with Mr. Justice Buckland (vide, order August 7, 1925). The learned Judge, however, added that if it was intended that the decree had any other meaning it might be still open to have the matter put right and that the decree-holder should, not be prejudiced if the mistake, as the decree-holder alleged, in the decree was due to an oversight in the drafting and ho allowed the decree-holder time to make such an application as he might think fit in the Court below. The decree-holder then filed an application before the Subordinate Judge on the 3rd September 1925, asking the learned Judge to amend the judgment and the decree of his predecessor.

5. This application was presumably made under Section 152 of the Civil P.C., about the same time the judgment-debtor applied on the 27th August to the Court asking that Court to amend the final decree and make it, as he alleged, in conformity with the preliminary decree and the judgment. These applications were disposed of by Mr. Profulla Chandra Dutt who had succeeded Mr. Asutosh Pal in the Court of the particular Subordinate Judge at Alipnr and the learned Judge then apparently read over and considered his predecessor's judgment, and after consideration of all these questions he came to the conclusion that the Judge could not have intended that the plaintiff should only get damages in the event of the defendants not giving vacant possession within fifteen days. He, therefore, amended the judgment of his predecessor holding that the word 'also' must be a clerical error for 'in any event,' and he amended the decree accordingly. He refused to amend the final decree as prayed for by the judgment-debtor. Against this order the judgment-debtor has moved this Court in its revisional power tinder Section 115 of the Civil P.C. and has obtained a Rule with which we are now dealing.

6. The learned vakil who appeared for the judgment-debtor has raised two points. First, that it is not open to one Judge to amend the judgment of his predecessor. Secondly, that the judgment and. decree under appeal cannot be amended.

7. I propose to deal with this Rule on the short ground that, in my opinion, on the facts stated, the matter does not fall within the purview of Section 115 of the Civil P.C. Section 115 provides that the High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto. Now, in the present case an appeal does lie against the decree which has been amended and the amendment of which and the amendment of the judgment of which are the subject-matter of the present Rule. No doubt, against an order amending the decree and amending the judgment there is no appeal. But against the amended decree itself there is an appeal because this amended decree has now become the decree in suit. This is obvious, because it is difficult to imagine that in any suit there could be two decrees at the same time and which two decrees are conflicting with each other. It is clear that the amended decree supersedes the original decree and obviously against this decree, which is the decree in the suit an appeal lies.

8. All the grounds which were taken and argued before us in this Rule could be taken as grounds in appeal. This is the view which commended itself to Oldfield, J. in the case of Raghunath Das v. Raj Kumar [1885] 7 All. 276, where the learned Judge pointed out that the decree as amended is the decree in the suit and that as an appeal lay from it no application could lie under Section 115. The same view was taken in the case of Surta v. Ganga [1885] 7 All. 411 : There are no doubt other decisions which take the contrary view. I do not, however, propose to deal with them nor is it necessary for the reasons which will be dear at the conclusion of my judgment. If we now deal with this matter in revision and come to the finding that the Judge had no jurisdiction to amend the judgment and decree we shall have to set aside the decree and by so doing we should do by way of revision what can be done and should be done by way of appeal. Even if I am wrong, in this view of Section 115 and the present case could coma within the purview of Section 115, I do not think that in the present case having regard to the facts and circumstances of the case it should be dealt with in revision.

9. Our powers under Section 115 are discretionary and I do not think, that we should exercise those powers of revision when a more appropriate and far more complete remedy is open to the appellant as is in, the present case by way of appeal against the amended decree.

10. The Rule, therefore, stands discharge with costs - five gold mohura.

Page, J.

11. I agree. There is no appeal from the order amending the decree in this suit. If the order in question, therefore, was a separate adjudication in a 'case,' then, in my opinion, it is within Section 115 of the Civil P.C., because the case is one in which no appeal lies to the High Court. I should be dispose to think, however, that the order in question was not a separate adjudication in a 'case' within Section 115. It appears to me that the order amending the decree was an order made in the suit, and was not a separate 'case.' The point does not appear to have been decided in this Court, for in Nalinakshya Ghosal v. Mafahshar Hossain [1885] 7 All. 411, the learned Judges merely expressed the view obiter that

the plaintiffs remedy, if any, would seem to be by an application under Section 622.

12. In Bombay and in Allahabad, however, the High Courts have held that the High Court has jurisdiction to entertain an application by way of revision in respect of an order such as the one in question in this suit; sea Bai Shri Vaktuba v. Agarsangji [1907] 31 Bom. 447, Raghunath Das v. Raj Kumar [1885] 7 All. 276, Raghunath Das v. Raj Kumar [1885] 7 All. 876, Surta v. Ganga [1885] 7 All. 411, Surta v. Ganga [1885] 7 All. 876, Hasan Shah v. Sheo Prasad [1893] 15 All. 875.

13. It is unnecessary, however, in the view that we take of this case that we should express a definite opinion upon this matter, because, assuming that we possess jurisdiction to entertain an application for revision of the order amending this decree, in our opinion, we ought not to interfere with the order in the exercise of the discretionary powers vested in the Court under Section 115. I am of opinion that an appeal lies, subject to the law relating to limitation from the decree as amended - Brojo Lal Rai Chowdhury v. Tara Prosanna Bhuttacharji [1906] 3 C.L.J. 188, Visvanathan Chetti v. Ramanathan Chetti [1901] 24 Mad. 646. It cannot be doubted also that it is more convenient that the legality of the order of amendment should be considered when the case is heard on appeal, and if the remedy by way of appeal is more appropriate than the remedy by way of revision, the Court will not interfere by exercising its power of revision. There appears to ha one ease, ho waver, in which it is laid down that, notwithstanding that an appeal lies from the decree as amended, the Court ought to revise an order amending a decree - Hasan Shah v. Sheo Prasad [1893] 15 All. 121, but the learned Judges in holding that

we are constrained to hold that this order is open to revision, and not to hold that the petitioner had his remedy by way of appeal from the amended decree

expressly stated that they did so because they regarded the decision in Raghunath Das's case [1885] 7 All. 876, as a binding authority compelling them so to hold. But with all due deference in that case the Court did not consider the question as to whether there was another appropriate remedy open to the petitioner as appears not only from the report of the case, but also from the observations of Mahmood, J., in Muhammad Naim-ullah Khan v. Ihsan-ullah Khan [1892] 14 All. 226, in which his Lordship stated that in Surta v. Ganga [1885] 7 All. 875 and Raghunath Das v. Raj Kumar [1885] 7 All. 876

the turning point was that an order under Section 206 being an unappealable order can be made-the subject of the visitatorial functions of this Court under Section 622 of the Civil P.C.

14. In my opinion, in the exercise of its discretion the Court ought not to revise the order amending the decree in this suit under Section 115, inasmuch as another and a more appropriate remedy is open to the petitioner. For these reasons, I agree that the Rule should be discharged.


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