An amendment of a decree under Section 152 of the Code of Civil Procedure is within the jurisdiction of the court that passed the decree, and such amendment does not result in failure of justice unless the aggrieved party can establish that the improper exercise of jurisdiction led to failure of justice.

A. SEETARAM REDDY, J.

( 1 ) THE petitioner seeks a revision of the Older made by the first appellate Court made in A. S No. 38/81 over-ruling the objections raised by the judgment-debtor and ordering for necessary further steps to be taken for execution of the decree and delivery of the property in pursuance thereof.

( 2 ) THE relevant facts in proof are that the respondent herein filed o. S. No. 65/66 for a declaration that he is the Muthavalli of Darga and has the right to manage the said properties and also for the delivery of the possession of the properties mentioned therein. The suit was, however, dismissed. Aggrieved by ihe same the re pendent preferred an appeal A. S. No. 228/1969 on the file of this Court, which was allowed on 22-2-1971 declaring the plaintiff, who is the respondent herein, as the Mutbavalli of the Darga and has a right to manage the wakf properties. Aggrieved by that the petitioner herein filed L. P. Appeal No. 98/71 which was, however, dismissed by a Division Bench of this Court on 9-7-1971. Subsequent to the dismissal, the respondent-decree holder filed C. M. P. No. 10167/72 for the amendment of the decree before a single Judge who had allowed the appeal on 22-2-1971 and the same was allowed on 24-4-1973 directing the defendant to deliver possession to the plaintiff of the properties set out in the schedule annexed to the C. M. P. No. 3226/1971. When E. P. No, 7/78 was filed in the said O. S. No. 65/66, objection was raised stating that it was not competent for the single Judge who had allowed the appeal to amend the decree as it was only competent for the L. P. Appeal Court wherein later the judgment passed by ths single Judge is deemed to have been merged in the L P. Appeal Judgment and, therefore, it is competent for that court only to amend the decree, and consequenty the E. P. has to be dismissed, the decree being a nullity. However, the executing Court over-ruled the objection Consequently the Appeal Suit No 38/1981 was preferred to the lower appellate Court, which likewise over-ruled the objection raised on behalf of the judgment-debtor and dismissed the appeal. Hence this revision.

( 3 ) THE karned counsel Shri Parvaihisam, for the petitioner contends that it was not competent for the first appellate Court to amend the judgment and decree in as much as that judgment and decree will be deemed to have been merged in the judgment passed in L. P. appeal and it will be onl,y competent for that L. P. appellate Court to amend the judgment ard decree if any, and therefore, the ameaded decree is not valid and, therefore, since the first appellate Court hid no jurisdiction to amend the decree, the decree is a void one and the same is not executable.

( 4 ) THE counter contentions of the learned counsel for the respondent are that it is not open to the petitioner-judgment-debetor here in to rulse the contentions which were already raised before the court which passed the decree at a time when the judgment and decree were amended, and after being put on notice and the same having been turned down cannot be allowed to be raised once again before the executing Court. Further the amendment was properly allowed and it was competent for the first appellate court to have amended, the same and even otherwise at the most it could be said to be a wrong order and cannot be said to be a void order. Hence it is incompetent for the judgmentd-debtor to raise the same befor the executing court. Secondly there is no remedy of appeal from the order passed in the executing Court and, therefore, the impugned order passed in the appeal is incompetent, and without jurisdiction. Thirdly even if it is said to be an order passed without any jurisdiction by the first appellate Court by a single Judge of this Court on first appeal, the executing Court can interfere only if it is shown that a wrong exercise of jurisdiction resulted in failure of justice.

( 5 ) SO the question in the main which arise for consideration is : (i) Whet

Click Here to Read the rest of this document