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2005 Supreme(Ker) 539

Judges : R.BHASKARAN,THOTTATHIL B.RADHAKRISHNAN,K.P.BALACHANDRAN
Thomas - Appellant
Versus
Kunjamma - Respondent
Case No : CRP.No.11 of 2001 (D)
Decided On : 09/02/2005
Advocates Appeared :
For the Petitioner: M.P. Abraham, Advocate. For the Respondents: V. Giri, Advocate.

Headnote:

Civil Procedure Code, 1908 - Section 152 - Revision is filed by the plaintiff in O.S. on the file of the Munsiff's Court - Suit was for injunction and it was tried along with O.S. - Trial court decreed O.S. and dismissed O.S. - Held, Possibility of the parties approaching the trial court for correction of the judgment and decree on the supposed intention of the appellate court cannot be ruled out and in that view of the matter also it is always desirable that the parties approach the appellate court or second appellate court which decided the case finally for making any correction of the judgment and decree - Though in this case an application is also made to amend the plaint this power can also be exercised by the second appellate court as the second appeal was disposed of on merit - Court is of opinion that the principle laid down in Vasudevan's case is against the decision of the Full Bench in Kannan's case and subsequent decision of the Division Bench in Saheeda v. Hemalatha and is not correctly decided - C.R.P. Dismissed

Judgment :-

Bhaskaran, J.

This revision is filed by the plaintiff in O.S.No.369 of 1976 on the file of the Munsiff’s Court, Muvattupuzha. The suit was for injunction and it was tried along with O.S.No.438 of 1976. The trial court decreed O.S.NO.369 of 1976 and dismissed O.S.No. 438 of 1976. The common judgment was confirmed in appeals and second appeals. Common judgment of the High Court was in SA.Nos.482 and 486 of 1982. Subsequently, the plaintiff filed an application for amendment of the plaint as well as of the decree to correct the extent of the plaint schedule property as 77.79 cents instead of 75 cents and also the survey number as Sy.No.734/2B instead of 734/2AB. The trial court dismissed the application holding that that court has no jurisdiction in view of the Full Bench decision in Kannan v. Narayani (1980 KLT 9 (FB). The plaintiff filed this revision before this Court challenging the order of the trial court. When the matter came before the learned single Judge reliance was placed on the decision of another learned single Judge in Vasudevan v. Lakshmi (2000 (3) KLT 704) holding that the trial court has jurisdiction to allow such amendments. The learned single Judge in Vasudevan’s case (2000 (3) KLT 704) had relied on the decision of the Supreme Court in Tiko & Others v. Lachman (1995 Suppl (4) SCC 582). The learned single Judge also noticed a decision of a Division Bench in Katamkandi Puthiya Maliackal Saheeda v. P.V. Hemalatha (2002 (2) KLJ 306) holding that there is merger o the trial court decree with the decision of the appellate court and hence the appellate court alone has jurisdiction to amend the decree. The learned single Judge referred the case to the Division Bench after expressing an opinion that the decision in Vasudevan’s case (2000 (3) KLT 704) required reconsideration. When the case reached the Division Bench, their Lordships have referred the case to the Full Bench for an authoritative pronouncement on the issue raised in the revision. It is thus that the revision is placed before us.

2. Any clerical or arithmetical mistake in a decree has to be corrected by the court which passed the decree. When the decree of the trial court is taken up in appeal and has merged in the appellate decree, the appellate decree alone subsists for all purposes. Therefore any correction of the decree has to be made by the appellate court only. That is the law laid down by the Full Bench of this Court in Kannan’s case (1980 KLT 9 (FB). However, the Vasudevan’s case (2000 (3) KLT 704) the learned single Judge relied on the decision of the supreme Court in Tiko’s case (1995 Suppl (4) SCC 582).

The question for consideration is whether the decision of the Supreme Court in Tiko’s case (1995 Suppl. 4 SCC 582) has laid down any law contrary to the decision of the Full Bench of this Court. The question whether an application for amendment of the decree has to be filed in the trial court where the trial court decree had merged in the appellate court was not the question considered by the Supreme Court. On the other hand, the petition for amendment was filed in the execution court which dismissed the application holding that the execution court cannot go behind the decree. In such circumstances, the supreme Court directed the application made for amendment of the plaint and decree to be treated as an application made in the original suit proceedings and to be disposed of in accordance with law.

3. The learned senior counsel appearing for the revision petitioner contended that in this case the appeal and second appeal from the trial court judgment were only dismissed confirming the decree of the trial court and therefore the trial court had jurisdiction to allow amendment of the plaint as well as of the decree. This contention cannot be accepted in view of the larger Bench decision of the Supreme Court in Collector of Customs v. East India Commercial company (AIR 1963 SC 1124). In that case, the question arose under Article 226 of t





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