(Chaganath) Muthappa Nair vs Poophil alias Velambrudur Variyatha Lakshmi Variar

Spencer, J.—The preliminary decree is not in accordance with the preliminary judgment, as in the plaint the mortgagee asked for the

mortgaged property to be sold and for payment of the amount found to be due to him out of the sale proceeds, and the judgment of the Court was

The suit is decreed as prayed for,"" but the preliminary decree as drawn up did not provide for any payment being made to the plaintiff, but

provided for payment of the amount found to be due to a subsequent mortgagee and the balance to the mortgagors. There was an appeal which

was dismissed with a slight modification as to the personal remedy. Now the Subordinate Judge after disposing of the appeal has declined to bring

the first Court''s decree in accordance with the judgment.

I think he was wrong in thinking that he had no power to amend the decree and in declining jurisdiction. It was held in Shivlal Kalidas v.

Jumaklal Nathaji Desai [1894] 18 Bom. 542 and numerous other cases that where there has been an appeal any order to amend the decree so as

to make it agree with the judgment should be passed by the Appellate Court. As observed by Sir John Edge C.J. in Mohamad Sulaiman Khan v.

Mohamad, Yar Khan [1887] 11 All. 267 if the original Court were allowed to amend its decree, the remit might be that it would become

essentially a different decree from that which the Appellate Court intended to confirm. The only executable decree is that of the Appellate Court

which incorporates the decree of the lower Court when it confirms it. No doubt the mistake might have been corrected by means of a memo of

objections at the time when the Appellate Court had cognizance of the case. But this omission will not have the effect of taking away the plaintiff''s

inherent right to have a decree in accordance with the judgment passed in his favour. Vide Sahadeo Sri Deo v. Dutt Misir [1913] 37 All. 323. I

observe that the final decree does provide for payment of what is declared due to plaintiff out of the sale proceeds, but as the objection that, this

being so, it will be unnecessary to amend the preliminary decree was not the ground of the Subordinate Judge''s order declining jurisdiction, it may

be left for consideration when the petition for amendment is finally disposed of. I set aside the order of the Subordinate Judge and direct him to

take the petition on file and dispose of it according to law. The respondent to pay the petitioner''s costs of this Civil Revision Petition.