Annapu Ramanna vs Ponduri Sramulu and others

Swami, J.—This is an application for amendment of the of the Court of the first instance in O. S. 6 of 1949, District Munsifs Court, Srikakulam. (SIC) The facts are; O. S. No. 346 of 1949 was ?r specific performance of an agreement to (sic)ated 29-2-1949 executed by the 1st defen-(sic)erein in favour of the plaintiff and for pos-(sic) of the plaint schedule property after eject-8 Andh. Pra. D.F./49 (sic)ing the defendants. The 1st respondent before me is stated to have been a subsequent alienee of the suit property under a registered sale deed dated 29-2-1949 with notice of the agreement in favour of the plaintiff. The suit was decreed on 27-3-1950.

On appeal in A. S. No. 120 of 1950, the Sub ordinate Judge of Srikakulam confirmed the decree passed by the trial Court. The first respondent filed a second appeal and it was dismissed by me at the admission stage on 1-11-1951. The plaintiff is then stated to have applied and obtained public copies of the judgments and decrees of the Courts below and he is stated to have found there from that the relief for possession was omitted from the decree inadvertently even though the suit was both for specific performance of the agreement and for possession therefore, he filed 1. A. No. 240 of 1951 in the Sub-Court; Srikakulam, for amendment.

The respondents opposed on the ground that the plaintiff was not entitled to possession until the sale deed was executed and that the omission of the relief for possession in the decree was proper. The Subordinate. Judge dismissed the application on the ground that the decree was in conformity with the judgment and that the proper remedy was to move the trial Court for amendment of the judgment. Therefore, the plaintiff filed I. A. No. 977 of 1951 in the District Munsif''s Court. Srikakulam, for amendment of the decree and judgment and it was opposed by the respondents on similar grounds.

The learned District Munsif dismissed the application on the ground that no separate court fee had been paid for the relief of possession and therefore no relief could have been given. The plaintiff obtained a. sale deed through Court on 2-7-1952. Then he filed O. S. No. 323 of 1952 on the file of the District Munsif''s Court, Srikakulam, for possession on the basis of title. The defendants raised the contention that the relief for possession could not be granted on account of the prior judgment wherein it must be deemed to have been refused. The plaintiff is thereupon stated to have sent the records to his counsel at Madras for filing a revision and he is stated to have been advised to file an application for amendment here.

The short point for determination is whether on the dismissal of the 2nd appeal under the provisions of O. 41, R. 11, C. P. C. before issue of notice to the respondent, an application for amendment of the decree lies here.

There is dearth of authority on this subject and the latest decision of the Madras High Court as known to me and brought to my notice is Devalraju Subbamma Vs. Devalraju Madhavarao and Others, There Horwill, J., held that an order dismissing an appeal in limine under O. 41, R. 11, is a decree within the meaning of S. 2 (2), C. P. C, that it does not make any difference that in such a case notice does not go to the respondent, that such a decree supersedes the decree of the lower Court in the same way as if notice had been issued to the respondent and that an application for amendment of the decree, therefore, lies to the appellate Court and not to the lower Court. The learned Judge relied upon Munisami Naidu v. Munisami Reddi, ILR 22 Mad 293 (B) and did not follow Batuk Prasad Singh Vs. Ambica Prasad Singh,

The learned Judge in paragraph 4 of his judgment states :

Although there is great deal to be said for the argument in Batuk Prasad Singh Vs. Ambica Prasad Singh, yet that authority does not seem to me sufficient to warrant my holding that the procedure consistently adopted by this Court is wrong. The above view of the Patna High Court agrees with that held in the Bombay High Court and in Nagpur; but. it is not the view of the Calcutta and other High Courts. This Court has, I believe, always presumed, even if it has not decided, that an order dismissing an appeal under O. 41, R. 11 has precisely the same effect as an order dismissing an appeal after notice under R. 32.

The Patna High Court''s decision (C) referred to is a Bench decision by Wort and Fazl Ali, U. The Judgment of Wort, J., shows that the learned District Judge in that case relied upon Uma Sundari Devi v. Bindu Bashini, ILR 24 Cal 759 (D) and held that it was the High Court and not the District Court which had jurisdiction. Wort, J., has remarked that the learned District Judge could not be blamed for taking this view as the case to which reference has just now been made has been followed in a number of Courts and adds "speaking for myself I prefer the reasoning of the case of Bapu v. Vajir, ILR 21 Bom 548 (E)."

Therefore, he came to the conclusion that the case should be sent back to the learned District judge and the amendment application should be heard and disposed of by him. Fazl Ali, J.; as he then was, in an elaborate judgment concurred with the conclusion of Wort, J.; and has discussed the language of O. 41, R. 11 and O. 41, R. 32 and the original S. 551 of the CPC and reviewed ILR 22 Mad 293 (B); ILR 24 Cal 759 (D) and Pichuvayyangar v. Sheshayyangar, ILR 18 Mad 214 (FB) (F), and held that they had not given due effect to the amendment in 1888 and so were obsolete and that the only case in which the result of the amendment was fully appreciated was ILR 21 Bom 548 (E), and that the view expressed in ILR 21 Bom 548 (E), received considerable support from the observations made by the judicial Committee in Kristo Kinkar v. Burrooa "Kant, 14 Moo Ind App 465 (PC) (G).

Therefore, on this point under consideration which is coming up almost daily, we have a volume of decisions throwing considerable doubt on the conclusion of Horwill, J. which in any event requires further consideration by a Bench.

I may add for completeness of information that the view of the Bombay High Court has been shared not only by the High Court of Patna but also by the Chief Court of Oudh and the Judicial Commissioner''s Court of Nagpur; see Tribeni Prasad v. Mt. Rukmin Devi, AIR 1941 Oudh 251 (H) and AIR 1933 117 (Nagpur)

In these circumstances this is a fit matter for being posted before a Bench and the papers may be placed before the Hon''ble the Chief Justice for necessary directions. Notice may be issued to respondent.

ORDER OF THE DIVISION BENCH

K. Subba Rao, C.J.

This application has been referred to a Division Bench by Ramaswamy, J., of the Madras High Court. After the formation of the Andhra High Court, the application was transferred to this Court.

The facts giving rise to this application may be briefly stated. The applicant filed O. S. No. 346 of 1949 on the file of the Court of the District Munsif, Srikakulam, for specific performance of an agreement to sell dated 29-2-1949 executed by the 2nd respondent for himself and as guardian of the 3rd respondent in his favour and for possession of the plaint schedule property after ejecting the defendants therefrom. Subsequent the 2nd respondent alienated the suit property favour of the 1st respondent, who had notice the agreement in favour of the applicant under registered sale deed dated 29-2-49.

The suit was decreed on 27-3-1950. (sic) decree directed the respondents to execute a (sic)s deed in favour of the applicant in respect of properties agreed to be sold to him subject to condition, that the applicant should deposit (sic) i Court a sum of Rs. 1,100/- on or before 10-4-19 The 1st respondent preferred an appeal against decree of the District Munsif to the Court of Subordinate Judge, Srikakulam, being A. S. No. of 1950.

The applicant filed cross-objections questior the correctness of the amount directed to be posited by him in Court as a condition for the cution of the sale deed in his favour. The ap(sic)as well as the cross-objections were dismissed the Subordinate Judge by judgment and de(sic) dated 5-3-1951. The 1st respondent preferred second appeal to the High Court of Madras age the decree of the learned Subordinate Judge.

The Second Appeal was dismissed by High Court on 1-11-1951 at the admission s(sic) under O. 41, R. 11, C. P. C. Thereafter, it is a(sic) ed that the applicant applied for and obtain public copies of the judgment and decree of Courts below and found therefrom that the r for possession was omitted from the decree advertently. On discovering the alleged omission he filed I. A. No. 240 of 1951 on the file of Subordinate Judge''s Court, Srikakulam, for am ment of the decree by including therein a reliei(sic) possession.

The learned Subordinate Judge, Srikaku dismissed the application on the ground that, as decree was in accordance with the judgment, proper remedy was for the applicant to move trial Court for amendment or the decree of trial Court. The applicant then filed I. A. No. of 1951 on the file of the Court of the Di(sic) Munsif, Srikakulam, for amendment of the judgment and decree in O. S. No. 346 of 1949 b(sic) elusion of the relief for possession.

The District Munsif dismissed that applic mainly on the ground that as no separate fee paid on the relief for possession, no decree for session could have been given in the suit. T(sic) after, alter obtaining the sale deed through on 2-7-1951, the applicant filed O. S. No. 39 1951, on the file of the Court of the District sif, Srikakulam, for possession of the proper the basis of his title. The respondents raise contention in that suit that the relief for p(sic) sion, which the applicant asked for in the in the previous suit was not granted by the ment and decree therein and must be deem''(sic).have been refused and therefore a fresh suil(sic) not maintainable.

In the aforesaid circumstances, the p application for amendment of the judgment decree in O. S. No. 346 of 1949 as affirm the High Court in the Second Appeal by i (sic) ing therein a relief for possession of the schedule property was filed. The applicant (sic); that the omission to give relief for possessor in the judgment as well as in the decree as (sic): ed by the High Court was due to an acc(sic) omission, and, therefore, this Court should the judgment as well as the decree so as to the relief for possession therein.

The 1st respondent contends thi(sic) decree is in accordance with the judgment therefore, the proper course is to get the judgment viewed and not to file an application for its amendment, that the application tor amendment is t(sic) maintainable in the High Court but should have en filed in the Court of the Subordinate judge (sic)d that, in any view, the applicant was guilty of (sic)hes and,. therefore, he is not entitled to have a cautionary remedy so many years after the 3ged omission was made by the District Munsif.

The first question is whether the application for amendment is maintainable in the second Appeal or should have been filed in the coordinate Court. Learned Counsel for the residents contends that, as the High Court dismissed the Second Appeal in limine under O. 41, R. 11, C. P. C. without giving notice to the respondents, decree of the High Court is not one of confirmation, that the final operative decree was that of subordinate Court made in the first appeal; therefore, if there was any accidental omission, application should have been filed to get the judgment and decree of the subordinate Court (sic) nded. To appreciate this argument, it is necessary to notice the relevant provisions of the Civil (sic)edure Code with their historical background, present provision of the CPC erring power upon the appellate Court to dis(sic) an appeal without giving notice to the respondent is O. 41, R. 11, C. P. C. It reads :

(1) The appellate Court, after sending for record if it thinks fit so to do, and after fixing (sic)y for hearing, the appellant or his pleader and (sic)rig him accordingly it he appears on that day, dismiss the appeal without sending notice to Court from whose decree the appeal is preferred (sic)and without serving notice on the respondent (sic)s pleader.

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(3) The dismissal of an appeal under this rule be notified to the Court from whose decree appeal is preferred.

Order 41, R. 37, C. P. C. prescribes a dure for sending a copy of the judgment and e to the original Court. Under that provided copy of the judgment and of the decree, (sic)ed by the Appellate Court or such officer appoints in this behalf, shall be sent to the which passed the decree appealed from and be filed with the original proceedings in the (sic)ind an entry of the judgment of the appel-(sic) Court shall be made in the register of civil P.C.

The corresponding section in the old Code (sic)for the former is S. 551 and for the latter 581. Section 551 of the Code of 1882 was following terms:

Section 551 : (1) The Appellate Court, if it fit may, after fixing a day for hearing the (sic)mt or his pleader and hearing him accorded he appears on that day, dismiss the appeal (sic)t sending notice of the appeal to Court whose decree the appeal is made and with-(sic)ving notice on the respondent or his pleader,

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(sic)i The dismissal of an appeal under this shall be notified to the Court against whose the appeal is made.

581 of the old Code runs thus :

copy of the judgment and of the decree, (sic)I by the Appellate Court or such officer as (sic)ints in this behalf, shall be sent to the which passed the decree, appealed against all be filed with the original proceedings suit and an entry of the judgment of the (sic)te Court shall be made in register of civil.

It will be noticed that there is no appreciable difference between the aforesaid provisions of the old and the new Codes so far as they are material to the question raised before us. Section 551 of the CPC of 1882 was the result of an amendment and the section before the amendment stood thus :

The appellate Court may if it thinks fit after fixing a time for hearing the appellant or his pleader and hearing him accordingly if he appears at such time confirm the decision of the Court against whose decree the appeal is made without sending notice of the appeal to such Court and without serving notice on the respondent or his pleader; but in such case, the confirmation shall be notified to the same Court.

This section was amended by the CPC Amending (7 of 18881 by substituting the words ''dismiss the appeal'' for the words ''confirm the decision of the Court against whose decree the appeal is made''.

The aforesaid provisions provide two modes for the disposal of an appeal. They were conceived for the expeditious disposal of frivolous appeals without giving notice to the respondent and causing him unnecessary trouble and expense and for the decision of arguable appeals after giving notice to the respondent and giving him an opportunity to support the decision of the trial Court. The difference between the two modes lies only in the manner of disposal but not in the essence.

In either case, the appellate Court considers the questions of law and the evidence arising in the appeal and in one case dismisses the appeal in limine as in its view no case is made to hear the respondent to sustain the judgment of the trial Court and in the other finds some arguable point of either fact or law which requires to be elucidated by the respondent. In both the cases, the appeal may be dismissed. But in the former case as the respondent is not heard the decree of the trial Court cannot be modified or varied

In other respects, whether the dismissal is in limine or after hearing the respondents, the dismissal is on merits. The appellate Court applies its mind, comes to the conclusion that the judgment of the trial Court is correct and, therefore, dismisses the appeal. In the case of an appeal, unlike that in the case of a revision, the aggrieved party has a right and the Court cannot, in its discretion, dismiss the appeal if, in its opinion, the decree of the trial Court is wrong.

We cannot, therefore, see any justification for the argument that there is a difference in essence between a judgment dismissing an appeal under O. 41, R. 11, C. P. C. or that made under O. 41, R. 37, C. P. C. In both the cases, the judgment of the appellate Court adjudicate upon the rights of the parties, though in one case the manner of disposal is concise and speedy and in the other it takes a more elaborate form and longer time. Whether the appeal is dismissed in limine against the ex parte respondent or dismissed after hearing the respondent, it is the decree of the appellate Court that governs the rights of the parties.

The amendment of S. 551 of the Code of 1882 in 1888 by substituting the word "dismissed" for the word confirmation, the argument proceeds, brings out the intention of the legislature to make a distinction between the two categories of disposals, with different legal consequences flowing from them. We cannot derive any such clear intention from the amendment. The amendment may well have been made more for perfection of phraseology rather than change in law and to bring that phraseology in conformity with the other relevant provisions of the Civil Procedure Code.

Indeed, a scrutiny of the provisions of the CPC dealing with the disposal of an appeal alter notice was ordered by the appellate Court discloses that the legislature has not used the word ''confirmation'' even in the case of the dismissal of an appeal after such notice. Order 41 Rule 17 empowers the Court to dismiss the appeal if the appellant does not appear at the time fixed for the hearing. Under Order 11 Rule 18, the Court dismisses the appeal if the appel�lant does not deposit the sum required to defray the costs of serving notice on the respondent.

Order 41 Rule 31 prescribes the contents of a judgment and under clause (d) thereof the judgment shall state where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. The word "confirming" for the first time appears in O. 41 R. 32. It says that the judgment may be for confirming, varying or reversing the decree from which the appeal is preferred. As that rule is describing the effect of the appellate judgment on the first court''s judgment, three modes of disposal are given in that rules

Order 41 R. 35 gives the contents of a decree and particularly enjoins on the court to give a clear specification of the relief granted or other adjudication made. Under O. 41, O. 37, a copy of the judgment and of the decree certified by the appellate court or such officer as it ap�points in this behalf shall be sent to the Court which passed the decree appealed from and shall be filed with the Original proceedings in the suit and an entry of the judgment of the Appellate Court shall be made in the register of civil suits.

It will be seen from the aforesaid provisions that a simple procedure is prescribed in the case of disposal of an appeal in limine, whereas a more elaborate procedure is provided in the case of a disposal after hearing the parties. Where the appellate Court agrees with the first Court, the appeal is dismissed without hearing the parlies or after hearing the gardes. The provisions do not lay down a different category of disposal such as confirming as distinguished from dismissal.

It cannot be said and indeed it is not suggested that if an Appellate Court confirms the decree of the lower court after notice is ordered, the effect of that order is not dismissal of the ap�peal. We, therefore, hold that the amendment of S. 551 was not intended to give a different legal effect to the dismissal of an appeal under that section different from that of dismissal of an appeal after hearing the respondent.

If the argument of the learned counsel for the respondents be accepted, it would lead to an anomaly which should be avoided unless express provisions of the CPC sustain it. The dismissal of an appeal in limine is certainly the formal expression of an adjudication conclusively determining the rights of the parties with regard to all or any of the matters incontroversy in the appeal. It is, therefore, a decree as defined under S. 2(2), C. P. C.

It is common-place that the decree of the trial Court merges with that of the appellate Court. But if the respondents'' contention is ac�cepted, there will be two decrees, one that of the appellate court and the other that of the trial Court. Each by force of law can be executed. There is no acceptable reason or principle why the legislature intended to have this consequence.

The only reason that can be suggested is that the respondent may have had no notice of the a appeal and, therefore, the appellate decree may be ignored.

The non-issue of notice to the respondent may be a ground for holding that any decree made against him is not binding on him but cannot efface the legal effect of a valid decision made by the appellate Court. If, as we has held, the appellate decree is the final decree as the decree of the lower court merges with it, follows that the application for amendment the decree should be made to the appellate Court.

That was the view expressed by the Full Bench of the Madras High Court as early as ILR J 8 Mad 214 (F). There, the District Court modified the decree of the District Munsif''s Court An application was made to the District Court binding the decree in conformity with the judgment. The Full Bench held that, as there been an appeal against the decree of the District Munsif and a decree has been passed thereon, District Munsif had no longer any power to am(sic) his decree.

The Full Bench decision was applied a Division Bench of the Madras High Court ILR 22 Mad 293 (B) to a case where the appellate Court dismissed an appeal under S.(sic) C.P.C. The learned Judges held that the terms ILR 18 Mad 214 (F) were general and. in the opinion, it applied equally to second appeals (sic) after notice to the respondent.

It may be mentioned that this judgment given on the basis of S. 551 C. P. C. after it amended by Act VII of 1888. Indeed, the (sic) ed Judges expressly referred to the decision of the Bombay High Court in ILR 21 Bom 548 wherein the learned Judges took a different on the foot of the aforesaid amendment (sic) judgment has never been dissented from by the Madras High Court and has stood the test of the Apart from the fact that it is binding on us(sic) do not see any justification to differ from it.

Horwili J., followed the Bench de(sic) in G. Kothandaramiah Vs. The Secretary of State for India in Council, The learned (sic) pointed out at page 493 that the procedure (sic) Madras High Court has been throughout ur(sic) and was not changed when the present Code of Civil Procedure, was drawn up and that, who appeal is dismissed under O. 41, R. 11, a c(sic) is drawn up in precisely the same form as(sic) it is dismissed after notice except that nece(sic) there is no reference to any advocate appeariate the respondent and no mention of costs.

The law of the Madras State, being authority and on practice for a period of (sic) half a century, has been in support of the applicant''s contention. Unless there are com(sic) reasons which we find none in this case,(sic) not see any justification to deviate from the t(sic) path.

There is a conflict of decisions b(sic) different High Courts. The decisions of the(sic) and Bombay High Courts differ from those(sic) Madras High Court, whereas the decisions(sic) Calcutta and Allahabad High Courts are in(sic) with those of the Madras High Court. In (sic) there is difference of opinion. See ILR(sic) 759 (D); Hussain Sab v. Sitaram Vigneshwa(sic) 1953 Bom 122 (J); ILR II Pat 409: (AIR (sic) Pat 238) (C); Jamuna Prasad Rai Vs. Rajballam Rai, Asma Bibi v. Hussain, ILR 30 All 290 (L AIR 1933 117 (Nagpur) .

For the reasons given supra, with, great respect, we agree with the view expressed by the madras, Calcutta and Allahabad High Courts in reference to that expressed by the Bombay, Patna and Nagpur High Courts. It is not necessary to consider the decisions taking the different view in (sic)tail as we do not see any justification to different the decision of the Madras High Court, which, being a decision of a Division Bench, is (sic)ding on us. It follows that an application to (sic)lend the decree is maintainable in the Second appeal.

Even so, it is contended that the application should have been for reviewing the judgment as well as the decree, as it is said that the decree is in accordance with the judgment and at is in effect and substance asked lor is to re-(sic)w the judgment, which denied the applicant relief of possession. The application was filed under S. 152, Cr. P. C. which reads :

Clerical or arithmetical mistakes in judgments, (sic)rees or orders or errors arising therein from any (sic)idental slip " or omission may at any time be (sic)rected by the Court either of its own motion on the application of any of the parties.

Simple question is whether the error, which follow sought to be rectified, arose from an accidental slip or omission. From the statement of (sic)s, it is seen that the suit was for specific performance of an agreement to sell and for possession. In such a suit, delivery of possession is part the specific performance of the contract of sale.

In the context of court-fees, a Division which of the Madras High Court in Sundara Rama(sic)m v. Sivalingam, ILR 47 Mad 150: (AIR 1924 (sic) 360) (N), considered the scope of a suit for (sic)ific performance of an agreement to sell and for session and held that such a suit was governed S. 7, CI. 10 (a) of the Court-fees Act and that (sic)es not become a suit for possession as described S. 7, CI. (v) (e) by reason of the addition of prayer for possession. At page 152 (of ILR (sic)): (at p. 361 of AIR), the learned Judge observed :

The relief by way of giving possession arises (sic)the relief granting the execution and delivery (sic)le sale deed, as without a registered sale deed, (sic) cannot be transferred under the Transfer of property Act where the value is over Rs. 100/-. out the latter relief being granted, the former (sic)ot. Nevertheless, both the rights, viz.; the (sic)to the sale deed and the right to possession (sic)g out of the same contract though one neces-(sic) precedes the other. The delivery of posses (sic) is a part of the specific performance of a contract of sale unless the terms thereof show that (sic)endee was not under an obligation to deliver session. The claim for delivery of possession is much a part of specific performance as the (sic) for the payment of the price is, when the (sic)brings the suit for specific performance.

The applicant admittedly paid court-fee (sic) S. 7, CI. (x) (a) of the Court-fees Act and (sic) for specific performance of the agreement to (sic)nd for possession. By an accidental omission, (sic)h the applicant succeeded on merits, the re-(sic)or possession was neither given in the judg-(sic)nor in the decree of the first Court. Both parties preferred appeals to the Subordinate (sic)''s Court, the respondents contending that the (sic) giving relief for specific performance should (sic)cated and the applicant pleading that the (sic)it directed to be deposited by him as a con(sic)precedent should be reduced.

The appeal as well as the memorandum of objections were dismissed and the decree of the first Court was confirmed. The Second Appeal filed was also dismissed in limine". It was never the contention of the respondents at any of the stages, of this protracted litigation that, though the applicant was entitled to get a relief directing them to execute a sale deed he had no right to be put in possession. Both the reliefs were inter�connected and they flow from the same right i.e.; the right of the applicant to have the agreement specifically enforced against the respondents.

The accidental omission was discovered at the time of execution and thereafter the applicant filed the application for amendment of the decree in the lower appellate Court, which, alter remand, was dismissed by the District Munsif. In the circumstances, the present application is only to correct an Accidental omission made in the judgment as well as in the decree and S. 152, C.P.C. empowers the Court to correct the mistake. We therefore, allow the amendment. The applicant will have his costs from the respondents.

C. M. P. No. 897 of 1954 is dismissed as unnecessary.