Umapada Pal vs Durgesh Nandini Ghosh

Dibyendu Bhusan Dutta, J.—The only question involved in the instant revisionat application u/s 115 CPC is by which Court the decree is to be amended-whether by the court of the first instance or by the court of appeal. The facts relevant for the purpose of deciding this question are as follows.

The Plaintiff-opposite party filed a suit (T.S. No. 50 of 1980) for eviction of the Defendant-Petitioner from a shop room on the ground floor of a particular premises. The suit was initially decreed on September 26, 1983 by the trial court and an appeal (T.A214 of 1983) was preferred against the decree. The appellate court sent the case back on remand before the trial court on December 21, 1985. During the pendency of the rehearing of the suit after remand before the trial court, the Plaintiff-opposite party filled an application for bringing certain facts to the notice of the court on March 5, 1987 stating that during the pendency of the suit the Defendant-Petitioner fraudulently converted the shop room into two apartments by erecting a brick wall and praying for keeping the petition on record so that no controversy could arise in future with regard to such change of the suit property. By order dated March 6, 1987, the trial court considered the petition and allowed the same to be kept with the record as prayed for by the Plaintiff. After remand, the suit was again decreed on July 30, 1987. The decree was again appealed against in Title Appeal 157 of 1987 and on a contested hearing, the appeal was dismissed and the decree was upheld by the appellate court on March 20, 1991. The Plaintiff decree holder put the decree into execution in T. Ex. I of 1993. The delivery of possession was directed to be given to the Plaintiff decree holder by the executing court through the nazir with police help and the possession could not be delivered on July 18, 1995 because of the description of the suit property in the decree suggesting that the suit property consisted of one room while two rooms were actually found to be in existence. The'' Plaintiff-decree holder then filed an application before the trial court under Sections151, 152 and Order 6 Rule 17 of CPC praying for amendment of the plaint and decree so as to include therein the subsequent event which took place by reason of conversion of one room into two. The Defendant judgment debtor opposed the said application on filing a written objection contending, inter alia, that the said application was not maintainable and the proposed amendment could not be allowed. By the impugned order dated March 21, 1998, the trial court negatived the objection that was raised by the defendent-judgment debtor. It took note of the petition that was filed by the decree-holder on March 5, 1987 by which the attention of the court was rartier drawn to the fact that the judgment debtor had since divided the rented room into two by erecting a wall. The trial court also found that everything including the boundary of the schedule of the suit property remained unchanged except that a separate wall was brought into existence inside the room. It was of the view that the said change effected by the judgment debtor was mala fide and that it was a mistake not, only on the part of the decree holder by not taking any steps for correction of the description of the suit property in the plaint schedule but also on the part of the court itself in not incorporating the necessary amendment in the decree which was passed on August 4, 1987. The trial court accordingly allowed the proposed amendment to be made in the decree that was passed by the trial court and gave direction upon the decree holder to file appropriate application for amendment of the decree that was passed by the appellate court since it was of the view that it had no jurisdiction to amend the appellate decree. And hence instant revision at the instance of the defendent judgment debtor.

Mr. Mukherjee, the learned Advocate appering for the Petitioner, urged only one point. He submitted that the trial court had no jurisdiction to amend the decree which by reason of its being affirmed on merits by the appellate court became the decree of the apellate court and that it was only the appellate court that could correct or amend the decree u/s 152 Code of Civil Procedure. He further submitted that the appeal in the instant case was dismissed on a full-fledged hearing on merits and not In limine and as such Section 153A of the CPC could not be pressed into service for enabling the trial court to amend the decree. In support of this contention, Mr. Mukherjee placed his reliance on the privy Council decision of Lala Brij Narain v. Kunwar Tejbal Bikram Bahadur 37 I.A. 70, a Division Bench decision of our High Court in Chandre Kala Devi v. Central Bank of India 62 C.W.N. 381 a Division Bench decision in Ramsunder Singh Vs. Most. Pana Kuer and Others, and a Full Bench decision of the Kerala High Court in Kannan and Others Vs. Narayani and Others,

Mr. Majumdar, the learned Advocate appearing for the Plaintiff-opposite party on the other hand, contended that the court has unlimited power to correct mistakes in judgments and decrees and it is the imperative duty of the court to correct them u/s 152 Code of Civil Procedure. He further submitted that the trial court had the power u/s 151 and 152 to correct errors arising in the judgments or decrees from any accidental slip or omission at any time and even on its own motion and that no illegality was committed by the court of first instance in allowing the amendment. Mr. Majumdar also contended that Section 153A is enabling in character. It does not divest the jurisdiction of the superior court or the court which passes the decree to effect correction in the decree. Reference has been made to a Supreme Court decision in Samarendra Nath Sinha and Another Vs. Krishna Kumar Nag, and three Single Bench decisions of Kerala, Gouhati and Allahabad High Courts respectively in The Assam Tea Corporation Ltd. Vs. Narayan Singh and Another, , Puthan Veettil Sankaran Nair Vs. Poomulli Manakkal Moopil Sthanam Parameswaran Namboodiripad, and Ram Bharosey Lal Vs. Rameshwar Dayal Chakkiwala and Another,

From the decisions cited on behalf of the Petitioner as well as the opposite party what emerg''es is that although there is divergence of views expressed by different courts on the question as to which court is competent to amend a decree, which is affirmed in an appeal, u/s 152 CPC but, more or less, the views are uniform at least on the question of merger of the decree of the high court in the appellate decree when the appeal is disposed of on merits. The Supreme Court in L. Janakirama Iyer and Others Vs. P.M. Nilakanta Iyer and Others, wherein the Supreme Court held that the decretal order drawn in the High Court through error could be corrected by the High Court under Sections 151 and 152 even through the appeal had been admitted in the Supreme Court before the date of correction. Evidently, the controversy before the Supreme Court did not concern any question of merger of decree as in this case. Even in Samarendar''s case''51, the question with which we are concerned''here namely whether the court of first instance could deal with an application u/s 152 CPC when the decision of that court had merged in that of the higher court was not as such in the controversy. This appears to have been noticed by the Full Bench of Kerala High Court in Kannan v. Narayanan(Supra). In Sankaron Nair v. Paramawaron Namboodriped''(Supra) satisfied and it was held that the court was functus officio only with reference to the execution but not with reference to the correction of the decree. In view of the latter Full Bench decision of the Kerala High Court, the decision in Sankaron Nair(Supra) cannot be relied upon. In Assam Tea Corporation v. Woragon Sigh(Supra) of merger of a decree was not involved. In Ram Bhorasey Lal v. Rameshwar Dayal(Supra), it was, however, held that the court of first instance was also competent to correct the decree irrespective of merger. But with due respect, I cannot find myself in agreement with this view. Section 153A has been introduced only to resolve the difference of opinion amongst different High Court on the question as to which of the Courts can amend the decree u/s 152 when the appellate court dismisses the appeal summarily under Order 41 Rule 11. Parliament by enacting this section has virtually legislatively affirmed the view taken by the Bombay and Patna High Courts that it is the court of first instance and not the appeallate court that can amend the decree where the appellate court dismisses the appeal summarily since the summary dismissal leaves the decree of the lower court untouched. Admittedly, in the present case, the appeal was dismissed on merits and it was not a case of summary dismissal so as to attract the provisions of Section 153A. In Chandra Kala Devi(Supra) and Ramsundar Singh(Supra) it has been held that the jurisdiction to amend the decree which is affirmed in appeal decided on merits lies with the appeal court and not with the court of first instance.

Thus, l am of the view that the decision cited on behalf of the Petitioner squarely apply to the facts and circumstances of the present case and as such I am to hold that the trial court acted without jurisdiction in allowing the amendment in the decree which became the decree of the appeal court. The impugned order is, accordingly, set aside so far as it relates to the amendment of the decree passed by the trial court. The decree holder will be at liberty to approach the appellate court on filling appropriate application or amendment of the decree as directed by the impugned order. The revisional application is, thus, disposed of.

Impugned Order set aside so far as it relates to the amendments of the decree; application disposed of and direction given.