Dilip Dutta and Others vs Ajay Kumar Pain and Others

Harish Tandon, J.—The judgment debtors have assailed the Order No. 61 dated June 18, 2012 passed by Civil Judge (Junior Division) 1st Court, Arambagh in Title Execution Case No. 4 of 2005 allowing an application under Order 6 Rule 17 of the CPC by permitting the decree holder to amend the schedule of the plaint. The point agitated by the judgment debtors/petitioners in this revisional application relates to the pure question of law and as such, there is no necessity of recording the facts in extenso. However, the brief facts are narrated below which are more or less admitted.

The predecessor-in-interest of the decree holders/opposite parties filed Title Suit No. 111 of 1998 in the Court of Civil Judge (Junior Division) 1st Court, Arambagh praying for a decree for eviction against the judgment debtors/petitioners in respect of the property, more particularly, described in Schedule ''Kal'' to the plaint. The judgment debtors/petitioners contested the said suit but there is no whisper in the written statement filed by them relating to the ambiguity and/or misdescription of the ''Kal'' schedule property. The suit was decreed after contested hearing on September 24, 2004. The appeal filed against the said decree was also dismissed and subsequently, the High Court did not interfere with the decree at the stage of Order 41 Rule 11 of the Code of Civil Procedure. The decree was, thereafter, put into execution in the Court of the Civil Judge (Junior Division) 1st Court, Arambagh which was registered as Title Execution Case No. 4 of 2005. The Executing Court issued the writ of possession and the bailiff was directed to deliver the possession to the decree holders/opposite parties. The bailiff returned the writ of possession as he found that the properties sought to be delivered in execution of the decree does not tally with the suit property as described in the plaint. Before further step could be taken by the decree holders/opposite parties, an application u/s 47 of the Code is taken out by the judgment debtors/petitioners challenging the executability of the decree. However, the judgment debtors/opposite parties filed a fresh application u/s 151 of the Code for re-issuance of the writ of possession which was ultimately allowed on December 12, 2005. The said order was assailed in civil revision before this Court in C.O. No. 1140 of 2006 which was eventually allowed on 12.8.2008, by setting aside the order, by which the writ of possession was reissued with the categorical observation that a suitable amendment is required to be made in respect of the schedule property in the plaint as well as the decree. The application for amendment is the outcome of such observation which has been allowed by the Trial Court.

The judgment debtors/petitioners are not assailing the order, by which, such amendment is allowed to be carried out in the plaint as well as the decree on merit, but is assailed on the pure question of law that after the dismissal of an appeal, the decree of the Trial Court merged with the decree of the Appellate Court and, therefore, any amendment and/or correction sought to be made in the decree can only be done by an Appellate Court and not by an Executing Court being the "Court of first instance.

Mr. Gopal Chandra Ghosh, the learned Advocate appearing for the judgment debtors/petitioners submits that after the affirmation of a decree passed by the Trial Court, it is a decree of the Appellate Court which is in effect becomes executable and any correction and/or amendments sought to be made in the decree can only be done by the Appellate Court and not the Court of the first instance. In support of the aforesaid contention, he heavily relied upon a judgment of the Andhra Pradesh High Court in case of Maldar Mahaboob Sab and Others Vs. Allabaksh, and a judgment of the Kerala High Court in case of Kannan and Others Vs. Narayani and Others, . On the point of merger of a decree of the Trial Court with the decree of the Appellate Court, he placed reliance upon a judgment of the Apex Court in case of Gojer Bros. (Pvt.) Ltd. Vs. Shri Ratan Lal Singh, . He strenuously argues that the clerical mistake in the decree can only be corrected by the Appellate Court affirming the decree, as the decree of the Trial Court has merged with the decree of the Appellate Court and placed reliance upon a division bench judgment of this Court in case of Sm. Chandra Kala Devi and Others Vs. Central Bank of India Ltd., and a judgment of the Punjab and Haryana High Court in case of Bachan Singh and Others Vs. Harbans Kaur, and a Division Bench judgment of the Patna High Court in case of Ramsunder Singh Vs. Most. Pana Kuer and Others,

Per contra, Mr. Bidyut Kumar Banerjee, the learned Senior Advocate appearing for the decree holder/opposite party submits that the misdescription and/or ambiguity in the schedule given in the plaint was never raised in the written statement nor raised before the Trial Court as well as the Appellate Court by the decree holders/petitioners. He further submits that the typographical mistake in the schedule is capable of being corrected either by way of an amendment or u/s 152 of the CPC and placed reliance upon a judgment of this Court in case of Anil Kr. Ray Vs. Kshama Rani Dutta and Others, and in case of Sailendranath Tapaswi & Ors. v. Netai Sundar Acharya reported in (2002)2 CHN 133. He heavily placed reliance upon the judgment of the Apex Court in case of Ramankutty Vs. Avara, to contend that Order 21 Rule 10 of the CPC requires the application for execution to be made to the Court which passed the decree and in view of the provision contained u/s 37 of the Code, the decree is executable by the Trial Court being the Court of first instance.

The point which emerges from the respective stand taken by the parties in this revisional application is, whether the decree passed by the Trial Court after having affirmed by the Appellate Court could be corrected and/or amended by the Executing Court, that is the Court of first instance or is capable of being corrected by the Appellate Court as the decree of the Trial Court merged with the decree of the Appellate Court.

The sheet anchor of the argument of the petitioners is on the basis of a merger of a decree of a Trial Court with the decree of the Appellate Court either on affirmation or reversion. The genesis of the aforesaid argument is originated from the judgment of the Supreme Court in case of Gojer Bros Pvt. Ltd. (supra) where it is held that if the Court of appeal affirms, varies or modifies or reverses the decree of the Lower Court, the decree of the Appellate Court is the only decree that can be amended and the limitation for executing a decree runs from the date of the decree capable of execution and it is a decree of the Appellate Court which supersedes the decree passed by the Court of first instance. The case before the Supreme Court was in respect of a decree passed under the West Bengal Premises Rent Control (Temporary Provision) Act, 1950, seeking an eviction of a tenant on the ground of nonpayment of rent. The Trial Court passed the decree on November 24, 1958, which stood confirmed on April 12, 1967. The second appeal after contested hearing was further dismissed by the Division Bench of the High Court on January 8, 1969 and the time to vacate the suit premises was given till the end of January 1970 on an undertaking filed by the tenant in this regard. Subsequently by West Bengal Premises Tenancy Act of 1956, more particularly, by the provision contained u/s 40 thereof, the said Temporary Provision Act was repealed. In between the date of dismissal of the second appeal by the High Court and the time to vacate the premises, several amendments were carried out in the said West Bengal Premises Tenancy Act, 1956 and section 17(D) was introduced which gives certain protection to the tenant who had suffered a decree under the Temporary Provisions Act of 1950 on the ground of non-payment of rent if the possession has not been recovered as yet to apply for setting aside the said decree. The said provision of section 17D came in force on and from November 14, 1969 which provides that before the commencement of the said Amendment Act, if a decree is passed, those would be protected under the said provision. A point was sought to be taken that since the decree which admittedly passed before the coming in force of the said Amendment Act, whether the tenant is entitled to the protection u/s 17(D) of the said Act. However, it was contended oh behalf of the landlord that the decree of the Trial Court merged with the decree of the Appellate Courts and the second appeal which was dismissed by the High Court, was after the commencement of the said amendment provision and, therefore, no protection could be afforded to the tenant. In the aforesaid perspective, the point arose whether the doctrine of merger would apply and it is a decree of the Appellate Court which could be taken as the date of a decree for the purpose of protection provided u/s 17(D) of the said Act. The Apex Court laid down that once the entire decree is carried in an appeal, it is the decree of the Appellate Court which is capable of being executed by applying the doctrine of merger.

The Andhra Pradesh High Court in case of Maldar Mahaboob Sab (supra), took note of the provision of section 153A of the CPC which was introduced by an Amendment Act 104 of 1976 which came into effect on and from February 01, 1977 providing the power of the Court to amend the decree or order appeal against by the Court of the first instance where the Appellate Court dismissed an appeal under Rule 11 of Order 41 and held that the said provision cannot be resorted, in the event, the decree is reversed by the Appellate Court as the said decree would be treated to have been passed under the provision of Order 41 Rule 32 of the Code and in such perspective, it is held that section 152 of the CPC seeking certain amendments in the decree can only be corrected by the Appellate Court alone and not the Court of first instance.

If one noticed the judgment rendered by the Apex Court in case of Gojer Bros Pvt. Ltd. (supra) and the Andhra Pradesh High Court in case of Maldar Mahaboob Sab (supra), the given case was in respect of the reversal and/or modification of the decree passed by the Court of first instance. The Apex Court was not dealing a question whether the Executing Court is denuded of power to amend the plaint or to correct the mistake u/s 152 of the Code, but was considering the case whether the date of the decree which stood affirmed by the Appellate Court would be considered to be the date for the purpose of providing protection u/s 17(D) of the West Bengal Premises Tenancy Act, 1956 or the date would be taken as the date of the decree passed by the Court of first instance for such purposes. However, the Andhra Pradesh High Court took a view that the decree cannot be amended u/s 152, as the decree passed by the Court of first instance was reversed by the Appellate Court.

Order 21 Rule 10 of the CPC provides that an application for execution shall be made to the Court which passed the decree. The phrase the Court which passed a decree'' has been defined u/s 37 of the Code to mean in relation to the execution of a decree to include where the decree to be executed has been passed in exercise of the appellate jurisdiction by the Court of first instance. The Apex Court in case of Ramankutty Guptan (supra) in categorical terms held that the decree of the Appellate Court would be considered to be a decree passed by the Court of first instance in these terms:

section 37 CPC enumerates that:

Definition of Court which passed a decree.--The expression ''Court which passed a decree'', or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include,--

(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and

* * * *

Therefore, it is clear that the decree of the Appellate Court would be construed to be the decree passed by the Court of first instance. It is settled law that an appeal is a continuation of the suit. Therefore, when a decree for specific performance has been dismissed by the Trial Court, but decreed by the appellate Court, it should be construed to be in the same suit. When the decree specifies the time for performance of the conditions of the decree, on its failure to deposit the money, section 28(1) itself gives power to the Court to extend the time on such terms as the Court may allow to pay the purchase money or other sum which the Court has ordered him to pay. In K. Kalpana Saraswathi v. P.S.S. Somasundaram Chettiar this Court held that on an oral prayer made by the counsel for the plaintiff for permission to deposit the entire amount as directed by the Trial Court this Court directed the appellant to deposit the amount within six months from that date together with interest and other conditions mentioned therein. An application for extension of time for payment of balance consideration may be filed even in the Court of first instance or in the appellate Court in the same suit as the decree of the Trial Court stands merged with that of the Appellate Court which decree is under execution. It is to be seen that the procedure is the handmaid for justice and unless the procedure touches upon jurisdictional issue, it should be moulded to subserve substantial justice. Therefore technicalities would not stand in the way to subserve substantive justice. Take a case where the decree is transferred for execution to a transferee executing Court, then certainly the transferee Court is not the original Court and execution Court is not the "same Court" within the meaning of section 28 of the Act. But when an application has been made in the Court in which the original suit was filed and the execution is being proceeded with, then certainly an application u/s 28 is maintainable in the same Court.

The question then emerges, is whether it should be on the original side or execution side. Section indicates that it should be "in the same suit". It would obviously mean in the suit itself and not in the execution proceedings. It is equally settled law that after passing the decree for specific performance, the Court does not cease to have any jurisdiction. The Court retains control over the decree even after the decree has been passed. It was open to the Court to exercise the power u/s 28(1) of the Act either for extension of time or for rescinding the contract as claimed for. Since the execution application has been filed in the same Court in which the original suit was filed, namely the Court of first instance, instead of treating the application on the execution side, it should have as well been numbered as an interlocutory application on the original side and disposed of according to law. In this view, we feel that the judgment of the Bombay High Court laid down the law correctly and that of the Andhra Pradesh High Court is not correct. The High Court, therefore, is not right in dismissing the application treating it to be on execution side, instead of transferring it on the original side for dealing with it according to law.

There is another fallacy in the argument of Mr. Ghosh. According to him, on affirmation of the decree by the Appellate Court, it is a decree of the Appellate Court alone which is capable of an execution and, therefore, the Appellate Court would be considered to be the Court which passes a decree and, therefore, is capable of executing the decree. The aforesaid submission is opposed to the provisions contained under the CPC which provides that the Court of first instance is the Executing Court for the purpose of execution of a decree, be it affirmed, reversed or modified by the Appellate Court. Therefore, the Court of the first instance being the Executing Court enjoins all the powers provided under the Court upon the Executing Court. The Co-ordinate Bench in case of Sailendranath Tapaswi (supra) took note of the Division Bench judgment passed in Chandra Kala Devi (supra) as relied upon by Mr. Ghosh in the present case and held that the Division Bench after holding that the decree of the Trial Court merges with the decree of the Appellate Court on affirmation but did not set aside the order rejecting an application u/s 47 of the Code but itself corrected the decree as has been done by the Trial Court. It is further held that, even if, such technical plea is accepted, the order cannot be faulted on merit as in such eventuality, the Appellate Court would amend the said decree and the result would be the same.

Even if, I accept the submission of Mr. Ghosh that upon affirmation of a decree by the Appellate Court, such decree can be amended by the said Court and not the Executing Court being the Court of the first instance, the order should not be interfere for simple reason that this Court under Article 227 of the Constitution of India enjoins the power of superintendence over the sub-ordinate Courts. Section 153A of the Code makes the position clear that on dismissal of an appeal under Order 41 Rule 11 of the Code by the Appellate Court, the power of the Court to amend the decree or order appeal against u/s 152 of the Code may be exercised by the Court which is passed the decree or order as the Court of first instance. Nonetheless the dismissal of the appeal, has the effect of confirming or affirming the decree or order, as the case may be, passed by the Court of first instance.

In the present case, the decree simply stood affirmed by the Court of appeal below and the Division Bench of the High Court dismissed the appeal under Order 41 Rule 11 of the Code, therefore, by applying the provision contained u/s 153A, it is a decree of the first Trial Court which is a Executing Court capable of being corrected and or amended as such. The petitioners have not challenged the impugned order on merit nor they have contended that the decree cannot be amended but what they have tried to contend that the Executing Court being the Court of first instance is incapable of amending the decree as it stood affirmed by the Court of appeal below.

Therefore, deriving an inspiration from the judgment of the Division Bench in case of Chandra Kala Devi (supra) and applying the same in the facts of the present case, this Court in exercise of the power of superintendence under Article 227 allow the application for amendment for doing the effective justice to the parties.

The revisional application is devoid of merit and the same is hereby dismissed. However, there shall be no order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.