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Thakur Madan Mohan Nath Sahi Deo Vs. Bhikhar Shahu - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in15Ind.Cas.719
AppellantThakur Madan Mohan Nath Sahi Deo
RespondentBhikhar Shahu
Cases ReferredHurro Durga v. Surut Sundari
Excerpt:
execution of decree - amendment of decree by executing court, if to be allowed--where judge executing decree is same who made it--whether such judge can amend decree in execution proceedings. - .....the second and third, then appealed to this court and they joined as parties respondents to their appeal the decree-holder and the first judgment-debtor. at the hearing of the appeal, the first judgment-debtor respondent was not represented; but by consent of the two judgment-debtors appellants and the decree-holder respondent, it was directed by this court that the, decree of the lower court and the application for execution be amended by striking out both the names of the second and third defendants, that as prayed by them execution do proceed against the first defendant alone, and, finally, that their rights, in the property, if any, be not affected by the sale. whether an order of this description, whereby the decree was materially varied, could have been validly made on an appeal.....
Judgment:

1. This appeal 'is directed against an order which purports to have been made in proceedings in execution of a mort- gage-decree, bat which really amends the original decree. The mortgage-decree, made in favour of the present respondent on the 15th December 19C4 against three defendants, directed the sale of the mortgaged properties; the first defendant alone, however, was made liable for the costs of the suit. An application was made for execution of this decree on the 8th January 1909, and after the objection of the judgment-debtors had been overruled on the 21st January, execution was directed to proceed. Two of the judgment-debtors, the second and third, then appealed to this Court and they joined as parties respondents to their appeal the decree-holder and the first judgment-debtor. At the hearing of the appeal, the first judgment-debtor respondent was not represented; but by consent of the two judgment-debtors appellants and the decree-holder respondent, it was directed by this Court that the, decree of the lower Court and the application for execution be amended by striking out both the names of the second and third defendants, that as prayed by them execution do proceed against the first defendant alone, and, finally, that their rights, in the property, if any, be not affected by the sale. Whether an order of this description, whereby the decree was materially varied, could have been validly made on an appeal from an order in proceedings for execution of the original decree, it is not necessary for us to consider. But it is clear that this order does not bind the first defendant as he was not a party thereto. Subsequently on the 4th March 1910, an application was made for execution of the decree against the first defendant alone. The second and third defendants entered appearance and objected to the execution on the ground that the decree had not been amended, at the instance of the decree-holder in the manner directed by this Court by consent of parties and they apprehended that the result of the execution sale, if it took place without a prior amendment of the decree, would be to affect their interest in the property. The Court overruled the objection taken by these two judgment-debtors. The first judgment-debtor then appeared and contended that the previous order of this Court was not binding upon him and that the decree could not be amended except upon a proper application in that behalf, to the Court which had passed the decree. The Subordinate Judge thought that this objection was frivolous and he proceeded to amend the decree. This is the order now assailed before this Court, and there can, in our opinion, be no room for controversy that the order cannot be supported.

2. Under Section 152 of the Code of Civil Procedure of 1903, clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties. It is manifest that an order under this section must be made in the suit itself. But it has been argued for the respondent that as the Subordinate Judge, who had to deal with the application for execution of the decree, was the Judge who had made the original decree, it was competent to him to amend the decree even in execution proceedings. We are not prepared to accept this contention as well founded. It is an elementary principle of law that an execution Court must execute the decree as it stands; it cannot alter, vary or add to the terms of the decree; its propriety or validity, cannot be discussed in execution proceedings. Girish Chunder v. Shoshi Shikha-refiwar 27 C. 951 : 27 I.A. 110 : 4 C.W.W. 631; Udwant Singh v. Tokhan Singh 28 C. 353 : 28 I.A. 57 : 3 Bom.L.R. 318; Forester v. Secretary of State 3 C. 161 : 4 I.A. 1373 C. 161 : 4 I.A. 137; Hurro Durga v. Surut Sundari 8 C. 332 : 9 I.A. 1. It would, in our opinion, be fundamentally erroneous to allow an execution Court to amend a decree without notice given to the parties and all the facts upon which amendment is claimed properly set out and investigated. The learned Vakil for the respondent has finally invited us to embark upon an inquiry into the merits of the matter; this necessarily involves an investigation of the merits of the suit and we must decline to accept his invitation to persist in the irregular course hitherto pursued in this litigation.

3. The result is that this appeal is allowed and the order of the Subordinate Judge discharged as made without jurisdiction. The appellant is entitled to his costs both here and in the Court below. We assess the hearing fee in this Court at five gold mohurs.

4. We desire to add that this order will not prevent the decree-holder from applying to the Subordinate Judge, if he is so advised, for amendment of the decree.


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