Back
2013 Supreme(Cal) 638
High Court of Judicature at Calcutta
TARUN KUMAR GUPTA, J.
Haradhan Malik
Versus
Biswanath Malik & Others
C.O. 1218 of 2011 & CAN 7509 of 2013 (Appellate Side)
Decided On : 26-09-2013
For the Petitioner:Asish Bagchi, Sandip Roychowdhury, Ms. Madhumitra Patra, Advocates.
For the Opposite Parties:Biswajit Basu, Susenjit Banik, Prasenjit Dey, Advocates.
The power to amend a decree under Section 152 of the Code of Civil Procedure can be exercised by the court which passed the decree in the first instance, notwithstanding the dismissal of an appeal under Order 41 Rule 11, but in other cases where the appellate decree becomes the final decree, the application for amendment of the decree should be made to the appellate court.
Headnote:
CIVIL PROCEDURE - Clerical Mistake - Correction of Decree - Section 152 read with Section 151 of the Code of Civil Procedure - Applicability - Trial court's authority to correct decree merged with appellate decree - Order 41 Rule 11 of the Code of Civil Procedure - Section 153 A of the Code of Civil Procedure - Interpretation.
Fact of the Case:
O.P. plaintiffs filed a suit for declaration of title and permanent injunction over a property. During pendency of the suit, they were dispossessed by the defendant. The trial court decreed the suit in favor of the plaintiffs, directing the defendant to deliver possession of the property to the plaintiffs. The defendant appealed the judgment, which was dismissed. The plaintiffs deposited the ad valorem court fees for the value of the property within the stipulated time. However, the decree drawn did not incorporate the relief of delivery of possession. The plaintiffs filed an application under Section 151 read with Section 152 of the Code of Civil Procedure for correction of the decree. The trial court allowed the application, and the defendant challenged the order in revision.
Finding of the Court:
1. The trial court erred in correcting the decree as it had merged with the decree of the lower appellate court. 2. The application for correction should have been filed in the lower appellate court. 3. The plaintiffs can file a fresh application for correction in the lower appellate court within six weeks from the date of the order. 4. The lower appellate court shall allow the application and make necessary corrections in the decree within four weeks from the date of filing. 5. The plaintiffs can then revive the execution case within four weeks, and the executing court shall revive the case and proceed with the execution as per law.
Issues: 1. Whether the trial court had the authority to correct the decree which had merged with the decree of the lower appellate court. 2. Whether the plaintiffs could file a fresh application for correction in the lower appellate court. 3. The procedure to be followed for correction of the decree and revival of the execution case.
Ratio Decidendi: 1. Section 153A of the Code of Civil Procedure provides that where an appeal is dismissed under Order 41 Rule 11, the power to amend the decree under Section 152 can be exercised by the court which passed the decree in the first instance, notwithstanding the dismissal of the appeal. 2. This implies that in other cases where the appellate decree becomes the final decree, the application for amendment of the decree should be made to the appellate court. 3. The trial court had no authority to correct the decree as it had merged with the decree of the lower appellate court. 4. The plaintiffs can file a fresh application for correction in the lower appellate court within six weeks from the date of the order. 5. The lower appellate court shall allow the application and make necessary corrections in the decree within four weeks from the date of filing. 6. The plaintiffs can then revive the execution case within four weeks, and the executing court shall revive the case and proceed with the execution as per law.
Final Decision: The revisional application was disposed of accordingly. The trial court's order correcting the decree was set aside, and the plaintiffs were granted leave to file a fresh application for correction in the lower appellate court within six weeks. The lower appellate court was directed to allow the application and make necessary corrections in the decree within four weeks from the date of filing. The plaintiffs were then at liberty to move the executing court within four weeks for revival of the execution case.
Tarun Kumar Gupta, J.
This application under Article 227 of the Constitution of India is directed against order dated 7th January, 2011 passed by learned District Judge at Hooghly, in Civil Revision No.95 of 2009. By the order impugned learned District Judge rejected the revisional application filed by the present petitioner defendant challenging order dated 4th of May, 2009 passed by learned Additional Court of Civil Judge (Junior Division) Chandannagar in Title Suit No.63 of 1987 whereby learned trial court allowed the petition dated 30th April, 2008 filed by the O. P. plaintiffs under Section 151 read with Section 152 of the Code of Civil Procedure for correction of the decree passed in connection with judgment dated 30.07.1997 in Title Suit No.63 of 1987.
The background fact of the case may be summarized as follows:-
1. The present O. P. plaintiffs filed said Title Suit No.63 of 1987 against present petitioner defendant praying for declaration of their right, title and interest over ‘Ka-1’ schedule property alleging that the petitioner defendant was threatening them dispossessing from said property being a part and parcel of plaintiff’s land described in ‘Ka’ schedule property and also for permanent injunction and other consequential reliefs.
2. During pendency of the suit O. P. plaintiffs were illegally dispossessed from said ‘Ka-1’ schedule property by the petitioner defendant.
3. After contested hearing learned trial court decreed the suit by judgment dated 30.07.1997 declaring plaintiffs’ right, title and interest in ‘ka-1 schedule property, restraining the defendant permanently from constructing any pillar thereupon, directing the defendant to demolish the pillar, if any, constructed thereupon during pendency of the suit and to deliver possession of the 'Ka-1’ schedule land to the plaintiffs in default plaintiffs will be at liberty to execute the decree through court, subject to payment of advalorum court fees of Rs.10,000/- within 15 days from said date.
4. On 14.08.1997 the O. P. plaintiffs deposited in court the advalorum court fees of Rs.750/- for value of ‘Ka-1’ schedule property being Rs.10,000/-.
5. The decree was drawn on 8th of August, 1997 without waiting for the period of 15 days from 30th July, 1997, and without incorporating the relief of delivery of possession of suit property as granted by the trial court in the judgment dated 30. 07.1997.
6. The petitioner defendant preferred an appeal being Title Appeal No.255 of 1997 against said judgment which ended in dismissal by judgment dated 24th of January, 2005 passed by learned Additional District Judge, Fast Track Court, First Court, Chandannagar.
7. The petitioner defendant moved this court against said order of dismissal of Title Appeal No.255 of 1997 being S. A. No.131 of 2007 which was rejected by this Court vide order dated 18th of September, 2006 under Order 41 Rule 11 of the Code of Civil Procedure.
8. The O. P. plaintiffs field an execution case being Title Execution Case No.7 of 2005 for execution of the decree of recovery of possession as petitioner defendant did not deliver possession in terms of the trial court judgment dated 30.07.1997 which was confirmed upto the level of this Court.
9. However, the execution court disposed of said execution case on full satisfaction.
10. The O. P. plaintiffs filed a revisional application being Civil Revision 21 of 2007 in the Revisional Court against said order of disposal of the title execution case on full satisfaction in spite of non-delivery of ‘Ka-1’ schedule property by the petitioner defendant in favour of the O. P. plaintiffs.
11. During hearing before the revisional court it came out that though the O. P. plaintiffs deposited the advalorum court fees in the trial court within time but in spite of that it was not noted in the decree that “defendant is directed to deliver possession of suit land i.e., (‘Ka-1’ schedule property) to the plaintiffs in default plaintiffs will be at liberty to e
