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Cites 4 docs
The Indian Penal Code, 1860
Ahidhar Ghose vs Secretary Of State on 18 April, 1932
Section 152 in The Indian Penal Code, 1860
Kalidas Rakshit vs Saraswati Dasi W/O Babu Harinath ... on 13 March, 1942

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Calcutta High Court
Sachindra Nath Kolya vs Probodh Chandra Sarkar on 4 July, 1947
Equivalent citations: AIR 1948 Cal 126
Author: B Mukherjea

JUDGMENT

B.K. Mukherjea, J.

1. This Rule is directed against an order of the learned Subordinate Judge, Second Additional Court of 24-Parganas, dated 4-7-1942 allowing an application for amendment of the judgment and decree made in Title Suit No. 103 of 1927 of that Court. The facts so far as they are material for our present purpose may be shortly stated as follows:

2. The opposite party, Probodh Chandra Sen who has since died and is represented by his Wife Sm. Pankajini Dassi, instituted a suit against one Swarnamoyee Dassi, the predecessor-in-interest of the petitioner in the Court of the Additional Subordinate Judge, 24-Parganas for establishment of his title to and recovery of possession of an eight annas share of certain Government Promissory Notes of the face value of Rs. 1,00,100 or in the alternative for value thereof together with interest and for other consequential reliefs. In the plaint, the value of the half share of the Government Promissory Notes claimed by the plaintiff was laid at its then market price at Rs. 35,035. As for interest, a claim was made tentatively for Rs. 850 and court-fees were paid upon the sum and there was a prayer to the effect that if on assessment, more money on account of the Government Promissory Notes was found due, the plaintiff might be given a decree for that amount, on payment of additional court-fees as might be required. The suit was decided in favour of the plaintiff and the decree that was drawn up is as follows:

It is ordered and decreed that the suit be decreed with costs. Plaintiff is entitled to half share of the Governmeut Promissory Notes as declared. Plaintiff do recover possession of the same. If the defendant does not deliver them or is unable to deliver them, the plaintiff will be able to realise their market value with interest due thereon at the Government Promissory Note rates from the date of Debrani's death, the amount of interest not exceeding Rs. 850, as the plaintiff has paid court-fees on that amount.

Against this decree the defendant took an appeal to this Court and the said appeal was dismissed on 2-3-1982. There was then an application for leave to appeal to His Majesty in Council. This was granted but eventually the defendant did not proceed with the appeal. On 9-6-1941, the plaintiff made an application for amendment of the judgment and decree under Sections 151 and 152, Civil P.C. and the application was filed in the Court of the Subordinate Judge who tried the suit. The allegation of the plaintiff in substance was that owing to an accidental slip or omission a most unfortunate error had crept into the judgment and the decree. The plaintiff or his legal advisor discovered recently that the interest on eight annas share of the Government Promissory Notes, since Debrani's death up to the institution of the suit which was allowed by the Subordinate Judge, would amount to nearly Rs. 72,000. It is true that the claim for interest was allowed tentatively at Rs. 850 upon which court-fees were paid but the plaintiff reserved to himself the right of having & decree for larger amount on payment of additional court-fees. It is said, therefore, that in the interests of justice this mistake might be rectified and the decree amended by giving a decree to the plaintiff of the whole amount due as interest and allowing the plaintiff to recover that amount on payment of additional court-fees. This application was allowed by the Subordinate Judge and it is against this judgment that the present Rule has been obtained.

3. Two questions have been raised by the learned advocate appearing for the petitioner. It is argued in the first place that as against the decree of the trial Judge, there was an appeal taken to this Court which affirmed the judgment of the Court below, the latter had no jurisdiction to entertain an appliation for amendment of the decree under Section 152, Civil P.C. The other point taken is that the allegation made by the plaintiff does not make out a proper case for amendment of the decree under Section 152 of the Code and that in the circumstances which have happened in the present case this discretionary remedy should not be given.

4. Now so far as the first point is concerned, the general proposition is fairly well established that where a decree of the trial Court is varied affirmed or reversed by an appellate Court, it is the appellate Court alone that can amend the decree, vide Brij Narain v. Tejbal Bikram ('10) 37 I.A. 70. Exceptions to this rule are to be found in cases where the person applying for amendment was not a party to the appeal or for some reason or other an appellate Court had not adjudicated upon his rights: vide Gajrajmati Tiwarin v. Swami Nath Rai ('17) 39 All. 13. When there is a pure omission to make a decree in conformity with the provisions of the Code of Civil Procedure, the power of amendment has been exercised by the trial Court even if an appeal against it had been decided by the appellate Court: vide Kalidas Rakshit v. Saraswati Dassi . In Ahidhar Ghosh v. Secy. of State this Court allowed an amendment of a

clerical mistake even if the decree was affirmed by the Privy Council. In the case before us, the plaintiff came to Court with an allegation that there was an omission on the part of the Court to draw up the decree in the proper form on the decision made by it and as the Court did allow the claim of the plaintiff to interest subsequent to the death of Debrani, it should have calculated the amount that would be due on this account and even though the plaintiff had not paid full court-fees it should have allowed the plaintiff to recover the amount on condition that the requisite court-fees were paid. This question was certainly not raised nor adjudicated on in the appeal which was filed by the defendant in this Court. Be that as it may, we do not think that the question of jurisdiction is really material in the present case. The appellate judgment was passed by this Court and the plaintiff's representative has made a substantive application to this Court for amendment of the decree under Section 152, Civil P.C. upon which a Rule, being Rule No. 1525F of 1942, has been granted. There is no dispute about the jurisdiction of this Court to correct an error or omission in the decree which it affirmed and we think that if the decision of the Court below is right, we can make an order in the same terms in Civil Rule No. 1525F of 1942.

5. As regards the second point, we have no hesitation in holding that the error in the decree was due to a slip or omission although the mistake was not discovered till long years elapsed from the date when the judgment was delivered. The Court undoubtedly allowed the plaintiff the entire interest due in respect of half share of the Government Promissory Notes from the date of Debrani's death down to the date of the suit. If the Government Promissory Notes had been delivered over to the plaintiff as prayed for, he could have withdrawn the interest himself from the Public Debts Office, but as the Notes were not delivered to the plaintiff, the plaintiff was entitled under the judgment of the Subordinate Judge to recover the price of the Government Promissory Notes as well as the interest due on it since the death of Debrani. It was simply an omission on the part of the Court not to calculate the amount of interest that was due and make a proper decree for the same amount in favour of the plaintiff subject to the condition of his paying the extra court-fees. There is undoubtedly a great delay in making this application but the interest of no third party has intervened uptill now. The only thing pointed out is that the decree was attached by a certain attaching creditor who executed it under the provisions of Order 21, Rule 53, Civil P.C. and he entered into agreement with the judgment-debtor under which on payment of a sum which was less than that due on the decree, the decree was satisfied. It is a well-settled proposition that an attaching decree-holder cannot enter into such a compromise with the judgment-debtor to the detriment of the original decree-holder. The result, therefore, is that we agree that the view taken by the trial Court was right and we direct that the order made by the learned Subordinate Judge may be made by this Court in civil Rule No. 1525F of 1942. Both the Rules, therefore, are disposed of on the same terms. We make no order for costs in these Rules.

Ormond, J.

6. I agree.