Narayanasami vs Natesa

Beat, J.

This is an appeal against an order of Mr. Justice Parker, which sets aside an order passed by the District Munsif of Tiruvalur, amending a

decree u/s 206 of the Code of Civil Procedure.

It is urged on behalf of the appellant that the learned Judge acted without jurisdiction (1) because an order passed u/s 206 of the Code is

appealable, and, therefore, not open to revision u/s 622, and (2) because even if such an order is not appealable, the Munsif had jurisdiction to

amend the decree u/s 206 and the mere fact of his having acted illegally (assuming such to be the case) would not give this Court jurisdiction to

interfere u/s 622, and it is contended finally that the Munsif''s order was correct, as he merely brought the decree into conformity with the

judgment.

As to the first of these objections it is contended that, though an order passed u/s 206 is not appealable as an order u/s 588, the decree, as

amended, is appealable. This was the opinion of Oldfield, J., in Surta v. Ganga ILR 7 All. 411 but Mahmood, J., was of different opinion in the

same case, and on appeal the Full Bench concurred with the latter, Surta v. Gunga ILR 7 All. 875 and this view appears to have been adopted by

this Court also. This first objection must, therefore, be disallowed.

The next objection, viz., that, as the District Munsif had jurisdiction, the mere fact of his having acted wrongly in the exercise of that jurisdiction

(assuming such to have been the case) was no ground for interference u/s 622, must, I think, be allowed to be valid. It was held by their Lordships

of the Privy Council in Rajah Amir Hassan Khan v Sheo Baksh Singh L.R. 11 IndAp 237 that, if a Court has jurisdiction to decide a question and

decides it, the mere fact of the decision being wrong is not sufficient to bring the case within the scope of Section 622 as amended by Act XII of

1879, and there can be no question as to the District Munsif''s jurisdiction to entertain the application u/s 206 and give a decision thereon.

But even on the merits of the case, I am of opinion that the District Munsif''s order was correct. The judgment expressly directs that the

hypothecated property"" be brought to sale if the money decreed be not paid within the time fixed for the payment. The error that was corrected

by the order in question is thus described by the Munsif: "" In the document (the hypothecation bond) the properties are described as follows: There

is a heading given with the words east, west, south, north, name of field and extent, and the particulars are entered in the appropriate columns. In

describing the lands in the plaint, this arrangement was not followed, but the boundaries of each have been separately given, the words east, west,

etc., being added after each boundary;"" and in so doing ""what ought to be the eastern boundary is placed as the western boundary and vice versa,

but the names and extents of the fields are correct."" It is thus seen that the alteration ordered was necessary to rectify a palpable error, without

which correction the decree was unexecutable. The error is in fact in the plaint, but it is so palpable that to disallow its correction would be simply

to put an obstacle in the way of plaintiff''s executing his decree.

The learned Judge is mistaken in supposing that ""it was the judgment that was wrong, the schedule attached thereto being at variance with the

description of the property in the hypothecation deed."" There is no schedule attached to the judgment. The judgment merely directs that ""the

hypothecated property"" be held liable for the debt and sold if necessary. Consequently, the suggestion that the plaintiff''s proper course was to

apply for a review of judgment is open to the objection that there is in the judgment nothing that requires correction. Whereas the application to

correct the decree so as to make it accord with the judgment is literally within the wording of Section 206, as it is ""the hypothecated property

which is by the judgment expressly made liable for the debt, and in the peculiar circumstances of this case the District Munsif was, I am of opinion,

justified in correcting the palpable errors in the schedule attached to the decree by a reference to the hypothecation bond.

I would, therefore, set aside the order of the learned Judge, and restore that of the District Munsif and direct respondent to pay appellant''s

costs both of the petition u/s 622 and of this appeal.

Muttusami Ayyar, J.

In this case I agree with Mr. Justice Parker that, on the true construction of the District Munsif''s judgment, there was no variance between it

and the decree to justify the amendment of the latter u/s 206 of the Code of Civil Procedure.

In construing a judgment as to the relief intended to be awarded, regard should, I think, be always had to the relief claimed in the plaint, as it is

not competent to a Court to award any relief not so claimed, and the proper construction of the words in the judgment ""the property

hypothecated"" is the property described in the plaint as hypothecated. But the facts of this case are that owing to a misdescription of boundaries in

the plaint, the property described therein as hypothecated is not the property described in the hypothecation deed or really hypothecated. The

appropriate remedy available to the plaintiff seems to me to consist in an application for review for the correction of an obvious error in the

judgment and the decree in consequence of an error in the plaint and not for amendment of a decree u/s 206 when there is no real variance

between it and the judgment.

I concur, however, after some hesitation, in the order proposed by my learned colleague for two reasons. The District Munsif had inherent

jurisdiction to amend the plaint and the decree, but he erred in the exercise of that jurisdiction by proceeding under one Section of the CPC instead

of another. He did not, therefore, assume a jurisdiction which he did not possess, but irregularly proceeded under one Section, whilst he ought to

have acted under another, and it is not, therefore, a proper case for interference u/s 622. According to the Full Bench decision, the error of

procedure must be such as to have led to the assumption of a jurisdiction which did not exist in law, and not merely to an erroneous action in law in

respect of a matter over which he had jurisdiction to interfere under the Code of Civil Procedure.

Another reason is the observation of the Privy Council in Bissessur Lall Sahoo v. Maharajah Luchmessur Singh L.R. 6 IndAp 233 to the effect

that in execution proceedings the Court will look at the substance of the transaction and will not be disposed to set aside an execution upon mere

technical grounds when they find that it is substantially right. It seems to me that this principle may be kept in view in the exercise of the

discretionary power conferred upon the High Court by Section 622, especially when the order revised corrected the plaint only so far as it

confounded the boundaries of the hypothecated property and placed the western boundary at the east and the eastern boundary at the west and

vice versa and thereby rendered the decree which would otherwise be incapable of execution capable of execution.

On these grounds, I concur in the order proposed by my learned colleague.