Gurbachan Singh vs Magher Singh and Others

R.N. Mittal, J.—This application has been filed for reviewing my judgment dated 4th January, 1982.

Briefly, the facts are that the property in dispute was sold by Boor Singh to Gurbachan Singh and Sham Kaur. A suit for possession by way of pre-emption was instituted by Maghar Singh, Ujjagar Singh and Bahadur Singh, which was decreed on 8th May, 1962. The decree was challenged by the vendees in appeal in the Court of the Additional District Judge, Barnala, who dismissed the same on 4th December, 1982. They came up in appeal to this Court which was dismissed in limine under Order 41, Rule 11, Code of Civil Procedure, on 6th January, 1963.

After dismissal of the second appeal, the decree-holder filed an execution application in the executing Court in which objections were filed by the judgment-debtors. While hearing the objections, the executing Court amended the decree,--vide its order dated 10th September, 1973. The judgment-debtor went up in appeal against that order before the Senior Subordinate Judge, Bhatinda, who accepted the same and dismissed the execution application. The decree-holders came up in second appeal against the order of the Senior Subordinate Judge to this Court which was decided on 28th February, 1978. The Court accepted the appeal and remanded the case to the Senior Subordinate Judge with a direction to determine as to what Khasra numbers had been allotted in lieu of the property in dispute after consolidation. this Court, however, affirmed the finding of the Senior Subordinate Judge to the effect that the executing Court could not amend the decree. An application was filed by the decree-holders after the remand order was passed for amendment of the decree before the first appellate Court, which was allowed and the decree-sheet was ordered to be amended,--vide order dated 17th March, 1980.

Gurbachan Singh judgment-debtor came up in revision against that order to this Court. The matter was listed before me and an argument was raised that the second appeal had been decided by this Court and, therefore, the first appellate Court had no jurisdiction to amend the decree. After taking into consideration two judgments of this Court in Bachan Singh and Others Vs. Harbans Kaur, . and Hakam Singh Vs. Jaswant Singh and Others, . I held that the first appellate Court had no jurisdiction to amend the decree. Consequently, I accepted the revision petition and set aside the order of the learned appellate Court amending the decree,--vide my order dated 4th January, 1982. The decree-holders have moved this application under Order 47, Rule 1, Code of Civil Procedure, for reviewing the said judgment.

It is contended by the Learned Counsel for the decree-holders that while deciding the application, the attention of the Court was not drawn to Section 153A of the Code, introduced by Code of CPC (Amendment) Act, 1976, under which the first appellate Court was entitled to amend the decree. He urges that in the aforesaid situation, the order dated 4th January, 1982, is liable to be reviewed.

I have heard the Learned Counsel for the parties at a considerable length. However, I find force in the argument of the Learned Counsel for the decree-holders. Section 153A of the Code reads as under:

Power to amend decree or order where appeal is summarily dismissed.--Where an Appellate Court dismisses an appeal under Rule 11 of Order XLI, the power of the Court to amend, u/s 152, the decree or order appealed against may be exercised by the Court which had passed the decree or order in the first instance, notwithstanding that the dismissal of the appeal has the effect of confirming the decree or order, as the case may be, passed by the Court of first instance

The purpose for enacting the aforesaid section is given in the objects and reasons as follows:

Sections 152 and 153 authorise the correction of mistakes, in judgments, decrees, etc. There is, however, a doubt as to which Court would be competent to amend, decree or order where an appeal against the decree or order has been summarily dismissed. The Bombay and the Patna High Courts have taken the view that it is the original Court which has the power to amend the decree or order. The High Courts of Allahabad and Andhra Pradesh have taken a contrary view. In view of the divergence of opinion, new Section 153-A is being inserted to empower the Court which had passed the decree or order where appeal has been summarily dismissed.

The view taken by this Court earlier was the same as was taken by the Bombay High Court.

The question to be determined is as to what the words "the Court which passed the decree in the first instance." mean. The Learned Counsel for the decree-holders submits that the said words mean the Court whose decree has been affirmed under Order 41, Rule 11, in appeal. On the other hand, the Learned Counsel for the judgment-debtor has argued that the said words mean the Court which passed the original decree.

After giving the consideration, I am of the opinion that the interpretation put by the counsel for the decree-holders is correct. The expression, in my opinion, means the Court against whose decree an appeal is dismissed in limine. In the case of dismissal of first appeal in limine, the original Court is the Court which passed the decree in the first instance and in the case of dismissal of second appeal in limine, the first appellate Court is such a Court. The section appears to be very clear and there is no ambiguity therein.

The matter, however, may be examined from another angle. It is that, if there is some ambiguity in an Act, the objects and reasons can be taken into consideration for the purpose of knowing the true intention of the Legislature. In this view, I am fortified by the observations of the Supreme Court in Express Newspapers (Private) Ltd. and Another Vs. The Union of India (UOI) and Others, ., wherein it has been held that when the terms of the statute are ambiguous or vague a resort may be had to the objects and reasons for the purpose of arriving at the true intention of the Legislature. It is clear even from the objects and reasons that the interpretation put by the Learned Counsel for- the decree-holders to the said words is correct. In view of the aforesaid discussion, I am of the opinion that in case an appeal is dismissed in limine under Order 41, Rule 11 of the Code, it is that Court whose decree has been challenged in the appeal which has the power to amend the decree. However, I took a different view as provisions of Section 153A were not brought to my notice at the time of the decision of the revision petition. Therefore, there is a sufficient ground to review the judgment dated 4th January, 1982.

Learned Counsel for. the judgment-debtor then sought to urge that the section was introduced in 1976, whereas the decree, which was amended by the appellate Court, was passed in 1962. According to him, the section, therefore, was not applicable to the present case.

I have given due consideration to the argument but regret my inability to accept it. Section 153A relates to procedure. It is well-settled that the procedural laws have retrospective effect. The application for amendment admittedly was filed by the decree-holders after coming into force of Section 153A. Consequently, they can take benefit of the said section for seeking amendment of the decree.

Faced with that situation, the Learned Counsel for the judgment-debtor has challenged the order of the appellate Court on various grounds. His first argument is that limitation for filing the application for amendment under Article 137 of the Limitation Act, 1963, was three years. He submits that thus the application of the decree-holders was barred by limitation. In support of his contention, he places reliance on Daulat Ram v. Baboo Ram AIR 1950 Pepsu 52. I am not convinced with this submission as well. Section 152 of the Code says that a clerical or arithmetical mistake in judgments and decrees 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. The words "at any time" in the section are important and show that there is no period of limitation for making applications under the said section. The facts of Daulat Ram''s case (supra) are distinguishable and, therefore, he cannot derive any benefit from the observations made therein.

The second argument of the Learned Counsel is that the decree had been corrected by the appellate Court without holding that there was any mistake therein and, therefore, its order was bad. This argument is also without merit. The appellate Court held that there were some clerical mistakes in the decree in the Khasra numbers. As already stated, the decree was passed about twenty years back and on account of various frivolous objections of the judgment-debtors, the decree-holders have not been able to execute the decree during this long period. The saying that real difficulty of a decree-holder starts after passing of the decree stands fully established. The objection is absolutely frivolous and has been raised to delay the execution of the decree.

The third argument of the Learned Counsel is that the amended decree is not in consonance with the judgment and pleadings. No such objection was raised before the first appellate Court at the time of arguments. The Learned Counsel cannot be allowed to raise the objection in revision for the first time. Therefore, the argument is liable to be rejected.

For the aforesaid reasons, I accept the review application and dismiss the revision petition with costs. Costs Rs. 500.