An application for amendment of a decree passed in an appeal dismissed in limine under O. 41, R. 11, C. P. C. is maintainable in the appellate Court.

ORDER OF REFERENCE

RAMASWAMI, J. : -

This is an application for amendment of the decree of the Court of the first instance in O. S. No. 346 of 1949, District Munsifs Court, Srikakulam.

2. The facts are ; O. S. No. 346 of 1949 was filed for specific performance of an agreement to sell dated 29-2-1949 executed by the 1st defendant therein in favour of the plaintiff and for possession of the plaint schedule property after ejecting the defendants. The 1st respondent before me is stated to have been a subsequent alienee of the suit property under a registered sale deed dated 29-2-1949 with notice of the agreement in favour of the plaintiff. The suit was decreed on 27-3-1950.

On appeal in A. S. No. 120 of 1950, the Subordinate Judge of Srikakulam confirmed the decree passed by the trial Court. The first respondent filed a second appeal and it was dismissed by me at the admission stage on 1-11-1951. The plaintiff is then stated to have applied and obtained public copies of the judgments and decrees of the Courts below and he is stated to have found therefrom that the relief for possession was omitted from the decree inadvertently even though the suit was both for specific performance of the agreement and for possession. Therefore, he filed 1. A. No. 240 of 1951 in the Sub-Court, Srikakulam, for amendment.

The respondents opposed on the ground that the plaintiff was not entitled to possession until the sale deed was executed and that the omission of the relief for possession in the decree was proper. The Subordinate Judge dismissed the application on the ground that the decree was in conformity with the judgment and that the proper remedy was to move the trial Court for amendment of the judgment. Therefore, the plaintiff filed I. A. No. 977 of 1951 in the District Munsifs Court, Srikakulam, for amendment of the decree and judgment and it was opposed by the respondents on similar grounds.

The learned District Munsif dismissed the application on the ground that no separate court-fee had been paid for the relief of possession and therefore no relief could have been given. The plaintiff obtained a sale deed through Court on 2-7-1952. Then he filed O. S. No. 323 of 1952 on the file of the District Munsifs Court, Srikakulam, for possession on the basis of title. The defendants raised the contention that the relief for possession could not be granted on account of the prior judgment wherein it must be deemed to have been refused. The plaintiff is thereupon stated to have sent the records to his counsel at Madras for filing a revision and he is stated to have been advised to file an application for amendment here.

3. The short point for determination is whether on the dismissal of the 2nd appeal under the provisions of O. 41, R. 11, C. P. C. before issue of notice to the respondent, an application for amendment of the decree lies here.

4. There is dearth of authority on this subject and the latest decision of the Madras High Court as known to me and brought to my notice is Subbamma v. Madhavarao, AIR 1946 Mad 492(A). There Horwill, J., held that an order dismissing an appeal in limine under O. 41, R. 11, is a decree within the meaning of S. 2 (2), C. P. C, that it does not make any difference that in such a case notice does not go to the respondent, that such a decree supersedes the decree of the lower Court in the same way as if notice had been issued to the respondent and that an application for amendment of the decree, therefore, lies to the appellate Court and not to the lower Court. The learned Judge relied upon Munisami Naidu v. Munisami Reddi, ILR 22 Mad 293 (B) and did not follow Batuk Prasad Singh v. Ambika Prasad Singh, AIR 1932 Pat 238 : ILR 11 Pat 409 (C).

5. The iearned Judge in paragraph 4 of his judgment states :

Although there is great deal to be said for the argument in AIR 1932 Pat 238 : ILR 11 Pat 409 (C), yet that authority does not seem to me sufficient to warrant my holding that the procedure consistently adopted by th