Minni Zuleka Bi and Another vs Kulsum Bi and Another

Wadsworth, J.—This revision petition raises the question whether when an appeal has abated so far one of the respondents is concerned

but has been decided on the merits so far as the other respondents are concerned, a subsequent application for an amendment of the decree u/s

152, Civil Procedure Code, at the instance of the legal representatives of the deceased respondent should be made in the trial Court or in the

appellate Court. The question is apparently not covered by authority and is not without difficulty. Unfortunately, very few of the relevant documents

are before the Court and there is a certain obscurity regarding the facts.

So far as I have been able to gather them, the admitted facts are as follows : The suit was originally filed by one plaintiff alone for partition of his

share in properties owned in common by members of a Muhammadan family. This plaintiff was entitled to a 7/24th share. By a clerical error the

plaint was so drafted as to make it appear that instead of claiming 7/24 of the whole of the properties, he was claiming only 7/24 of 7/24 of the

family properties. This error was not noticed till after the preliminary decree had been passed and an appeal had been filed by certain of the

defendants. There was a large array of respondents, but the principal respondent was the original plaintiff. He died during the pendency of the

appeal and no legal representative having been brought on record within the time allowed, the appellate Court ordered that the appeal so far as he

was concerned, abated. Apparently, the appellant made out no case against the other respondents, and the appeal as against them was dismissed

with costs. There was no order as to costs in respect of the deceased respondent. After this decision the present petitioners, legal representatives

of the deceased first plaintiff were impleaded in the final decree proceedings as the second and third plaintiffs and it was at this stage that the error

in the plaint which had been incorporated in the preliminary decree was discovered and an application was filed before the District Munsiff to

rectify this error both in the plaint and in the preliminary decree. It was rejected by the. District Munsiff on the ground that he had no jurisdiction to

modify the decree of the appellate Court. This is the order against which the present revision petition has been filed, but the judgment contains no

reference to the fact that the appeal, so far as it related to the first plaintiff under whom the petitioners claim, had abated before the dismissal of the

appeal as against the other respondents. A review application was filed calling the attention of the District Munsif to this abatement. The District

Munsif declined to modify the previous order and there is no petition to revise the review order.

The contention of the petitioners is that when an appeal abates, the position of the deceased respondent is just the same as it would have been

had no appeal been filed and his legal representatives are entitled to treat, as the only decree affecting them, the decree of the trial Court.

Therefore, it is contended, if a clerical error is discovered in this decree, they must look to the trial Court to amend that decree and they have no

locus standi to approach the appellate Court for the same relief. This being a matter of first impression and one which is not free from difficulty, it

is, in my opinion, necessary to dispose of it with reference to the special facts of the case and it is not desirable to attempt to adjudicate on the

hypothetical case in which an amendment is sought of a decree in a case when the appeal has abated as against the sole respondent. In many

respects, the abatement of an appeal has the same effect as the dismissal of an appeal. Under Order 22, Rule 9, Civil Procedure Code, the

abatement of a suit or appeal prevents the filing of a fresh suit or appeal raising the same contentions and it is established that when an appeal has

abated, limitation runs from the date of the order of abatement and not from the date of the preliminary decree. It is obviously necessary that one

Court or other should have the power to rectify clerical errors affecting the process of execution in which the legal representatives of the deceased

respondent are interested. There is a decision of a Bench of the Allahabad High Court reported in Deoki v. Jwala Prasad I.L.R.(1928)All. 608 to

the effect that when the appellate Court merely allows an appeal to be withdrawn, this order has not the effect of a decree superseding the trial

Court''s decree and any amendment is to be carried out by the trial Court. It is of course arguable that when an appellant allows the appeal against

the deceased respondent to abate, the effect is very much the same as if the appeal had been withdrawn as against that deceased respondent. But

even assuming this to be so if the appeal is withdrawn as against one respondent but prosecuted as against other respondents until it results in a

decree on the merits in the appellate Court, in such circumstances should the respondent in respect of whom the appeal has been withdrawn be

required to go to the trial Court for his amendment or to the appellate Court. My attention has been drawn to two decisions of the Madras High

Court which have some slight bearing on the question before me. One is the decision of a single Judge reported in Muthu Bhattar v. Mrithunjaya

Bhattar (1917) 7 L.W. 8. The actual decision was to the effect that when there is a second appeal pending, it is the lower appellate Court1 which

has jurisdiction to amend the decree. The correctness of that proposition is not disputed, but it is contended that a consequential order of the

learned Judge on a Civil Miscellaneous Petition, filed contemporaneously with the Civil Revision. Petition against the District Judge''s refusal to

amend by implication recognises the power of the High Court to carry out an amendment in the case of an appeal which has been withdrawn. It

does appear that the second appeal in that case-was eventually withdrawn; but it does not appear that the second appeal had been withdrawn at

the time when this Civil Miscellaneous Petition was filed. If as seems likely, the second appeal was still pending, the order on the Civil

Miscellaneous Petition, consequential upon the order in the Civil Revision Petition, that the amendment was to be carried out by the District Judge,

would have no more effect than to implement the decision that the pendency of an appeal did not affect the power of the lower Court to amend.

The other case is one reported in Pankajammal v. Seshadri Aiyangar (1912) 16 I.C. 933. That was a revision against an order of amendment

carried out by the lower appellate Court when there had been a second appeal which had been dismissed. One of the learned Judges held that the

lower appellate Court had the power of amendment because the second appeal had been dismissed merely on the ground that no appeal lay and

therefore there was no decree of the second appellate Court confirming the decree of the lower appellate Court. The other learned Judge does not

appear to have adopted this view, for he agrees with the decision on another ground and refrains from commenting on the theory that the dismissal

of a second appeal on the ground that no appeal lies is not tantamount to a decree. There is also a decision of a Bench of the Allahabad High

Court reported in Pitam Lal v. Balwant Singh (1912) 16 I.C. 933, in which it was held that when an appeal was dismissed for default, there is,

properly speaking, no superseding decree of the appellate Court and an amendment application lies to the lower Court. This is decision, like that in

Deoki v. Jwala Prasad I.L.R.(1928) All. 608, already referred to, does not deal with the difficult question which arises when the appellate Court

actually gives a decision on the merits so far as some of the parties are concerned though the appeal fails for want of prosecution or some-similar

cause as regards another party.

Whatever the position may be when an appeal abates in its entirety and there is no possibility, in consequence, of conflicting decrees, it seems to

me that there are obvious grounds for limiting the power of amendment to the appellate Court when an appeal has abated only in part and a decree

on merits has been given as against the other respondents. In such circumstances, there is clearly a decree capable of execution passed by the

appellate Court. The legal representatives of the deceased respondent would presumably be required when filing an application to execute the trial

Court''s decree, to produce a copy of the appellate Court''s decree in order to prove that the appellate Court had not modified the decree so far

as the deceased decree-holder was concerned. When the decree in question, like that which is now under consideration, is a preliminary decree

for partition and possession of a fractional shard, the result of allowing an amendment in the, trial Court altering the fraction of the deceased

respondent''s share would necessarily be that there would be two conflicting decrees.. The preliminary decree of the trial Court gave to the plaintiff

7/24 of 7/24 of the entire properties. The amendment suggested would give him 7/24th of the whole properties - a very different share. The

appellate Court''s decree which binds all the parties, except perhaps the legal representatives of the deceased respondent, confirms the former

decree for the lesser share. It seems to me to follow that if there is to be an amendment which has ''the effect of enlarging the plaintiff''s share, that

amendment must necessarily be carried out in the appellate Court''s decree if a conflict between the two decrees is to be avoided.

It is objected that this would put the legal representatives of the deceased respondent in the position having no locus standi to pray for the

amendment of a decree affecting them, such decree being clearly vitiated by a clerical error. I do not think that this objection is insuperable.

Granted that for the purpose of coming on record in a pending appeal, there is a special period of limitation provided, when we are at the

execution of the final decree stage, the legal representatives of the deceased decree-holder can be brought on record at any time when the decree

is alive, so far as is necessary for the purpose of prosecuting their rights. If once it is conceded that the decree which is to be executed is in

substance the appellate Court''s decree, there being no statutory prohibition against the amendment of this decree at the instance of the legal

representatives of a deceased decree-holder, it seems to me to follow ex debito justitiae that the appellate Court must have the power to carry out

the necessary amendments at the instance of the legal representatives of the deceased party.

And in this view I dismiss the revision petition with costs.