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Aghora Kumar Ganguli Vs. Mahomed Musa - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in5Ind.Cas.723a
AppellantAghora Kumar Ganguli
RespondentMahomed Musa
Cases Referred and Mc Ellister v. Biggs
Excerpt:
decree, amendment of - application to the bench of group to which case belongs, not to same judges--practice--civil procedure code (act v of 1908), section 152, order xlv, rule 13--amendment of decree by high court after leave to appeal to privy council granted--after appeal, amendment of decree to be made by appellate court. - .....point are collected. our attention was, however, invited to the decisions in bunwaree chand thakoor v. muddan mohun chuttoraj 21 w.r. 41, mirza akbur ali v. mullick mukhdoom buksh 25 w.r. 63 and mc ellister v. biggs (1883) 8 a.c. 314 at p. 317, where it was ruled that when it is alleged that there are clerical errors in the decree of the first court, or of the lower appellate court, the proper remedy is to have the decree amended in that court and not to prefer an appeal merely to get the decree rectified. that principle has obviously no application to the question now raised before us and the third ground must consequently be overruled.5. the result, therefore, is that this rule must be made absolute and the decree amended so far as the costs recoverable by the defendants nos. 2, 3.....
Judgment:

1. We are invited in this Rule to amend the decree of this Court in appeal from Original Decree No. 476 of 1908. The appeal was heard by a Division Bench in May and June last, and on the 16th June, the appeal was allowed, the decree of the lower Court set aside, and the suit dismissed. The full judgment in that case is reported in 2 Ind. Cas. 662 Ed. It was further directed that the plaintiff-respondent should pay to the defendants Nos. 2, 3 and 4, the then appellants before this Court, the costs incurred by them in the lower Court. These costs were not specified in the decree of this Court, but had been set out in the decree of the lower Court, which to this extent was thus incorporated by implication. In that decree, however, by a clerical error, the amount of costs incurred by the second and third defendants stated to be Rs. 684-8-6, whereas it ought to have been Rs. 1,549-12 6. So far as the fourth defendant was concerned, the costs payable to him had been inaccurately stated to be Rs. 1,310, instead of Rs. 1,310-10. The petitioners now ask that the decree of this Court, in so far as it incorporates by reference the decree of the Court below may be amended so as to enable them to recover from the plaintiff the correct amount of costs. The learned Vakil who has appeared to show cause has not challenged the accuracy of the allegations of the petitioners, but has contended that the Rule ought to be discharged on three grounds; namely, first, that the Court as now constituted has no jurisdiction to entertain the application, inasmuch as the original appeal was heard by Mr. Justice Chitty and Mr. Justice Carnduff; secondly, that inasmuch as leave has been granted to the plaintiff to appeal to His Majesty in Council, it is no longer competent to this Court to amend the decree; and, thirdly, that the application for amendment, if maintainable, at this stage, ought to be made to the Court below by which the decree in which the error is contained, was drawn up. In our opinion, there is no substance in any of these contentions.

2. So far as the first point is concerned, reliance has been placed upon Section 152 of the Code of 1908, which provides that clerical errors or arithmetical mistakes may be corrected by the Court either of its own motion or on the application of parties. This does not mean that the Court to which the application is made for amendment must necessarily be composed of the same Judges as those who heard the appeal. The settle I practice of this Court has been to allow applications of this character to be made to the Division Bench in charge of the group to which belongs the case the decree in which is sought to be amended. If the provisions of the Code relating to applications for review of judgment are contrasted with the provisions contained in Section 152, and it is observed how Section 114 is, in this respect, controlled by Order 47, Rule 5, it becomes obvious that the Code expressly provides for certain applications to be made to the identical Judges who heard the original suit or appeal, and made the decree. The first objection cannot consequently be supported.

3. So far as the second contention is concerned, it is equally groundless. Our attention has been invited to Order 45, Rule 13, of the Code and it has been suggested that our powers in respect of cases in which leave to appeal to His Majesty in Council has been granted, are restricted to the operations specified in that order: This argument, however, overlooks the fact that Section 152 expressly provides that an order for amendment may he made by the Court at any time. We are unable to accept the suggestion that these words are restricted in their operation in any way by Order 45, Rule 13. It may further be pointed out that leave has been granted to appeal to the Judicial Committee but the transcript record has not yet been sent to England. This Court, therefore, still retains jurisdiction over the matter. The second objection thus completely fails.

4. So far as the third contention is concerned, it is opposed to all the authorities in this as well as in other High Courts. It is now well-settled that if the decree of the Court below is confirmed, reversed or varied on appeal, the application for amendment has to be made to the appellate Court, the decree of which Court is the ultimate and the only decree in the case. In support of this proposition, it is sufficient to refer to the cases of Muhammad Sulaiman Khan v. Muhammad Yar Khan 11 A. 276 Shivalal Kalidas v. Jumklal Nothiji Desai 18 B. 542 and Rameswar v. Bhaba 11 C.L.J. 81 : 5 Ind. Cas. 304 where all the authorities on the point are collected. Our attention was, however, invited to the decisions in Bunwaree Chand Thakoor v. Muddan Mohun Chuttoraj 21 W.R. 41, Mirza Akbur Ali v. Mullick Mukhdoom Buksh 25 W.R. 63 and Mc Ellister v. Biggs (1883) 8 A.C. 314 at p. 317, where it was ruled that when it is alleged that there are clerical errors in the decree of the first Court, or of the lower appellate Court, the proper remedy is to have the decree amended in that Court and not to prefer an appeal merely to get the decree rectified. That principle has obviously no application to the question now raised before us and the third ground must consequently be overruled.

5. The result, therefore, is that this Rule must be made absolute and the decree amended so far as the costs recoverable by the defendants Nos. 2, 3 and 4 under the decree of the Court of first instance are concerned. The petitioners are entitled to the costs of this Rule. We assess the hearing fee at two gold mohurs.


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