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HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Janak Raj Kotwal, J.
State of J&K & Ors. -Appellant
Versus
Gh. Nabi Lone -Resopndent
C. Rev. No. 122-2008
Decided On : 15-05-2013
Specific Relief Act - Rectification of Decree - Section 56(D) - Article 37 of CSR - [SUMMARY OF ACT SECTIONS: Section 56(D) of Specific Relief Act, Article 37 of CSR] - The court rectified the decree by deleting the reference to section 56(D) of the Specific Relief Act, as it was out of context and caused contradiction and confusion in the decree. However, the court found that the trial court acted in haste and made further rectifications in the decree, which were not sustainable and called for correction in exercise of revisional power of the court.
Fact of the Case:
A suit filed by the respondent/decree-holder was decreed by the Court of Ld. Munsiff (Sub Registrar), Srinagar. The respondent sought correction in the judgment and decree to delete the term 'keeping in view section 56(D) of Specific Relief Act'. The trial court recast the decree and made further rectifications, leading to an appeal and subsequent revision petition.
Finding of the Court:
The court found that the reference to section 56(D) of the Specific Relief Act in the judgment and decree was out of context and caused contradiction and confusion. The trial court acted in haste and made further rectifications in the decree, which were not sustainable.
Issues: The issues revolved around the correction of the judgment and decree, the rectification made by the trial court, and the appeal against the trial court's order.
Ratio Decidendi: The court's decision was based on the interpretation of the Specific Relief Act and the rectification of the decree. It emphasized that rectification should be in line with the original decree and should not lead to further unsustainable modifications.
Final Decision: The court set aside the second part of the trial court's order, which made further rectifications in the decree. It directed the trial court to conclude the proceedings expeditiously within a period of six months.
2. Heard. I have perused the record.
3. Briefly, facts relevant for this revision are that a suit filed by the respondent/decree-holder was decreed by the Court of Ld. Munsiff (Sub Registrar), Srinagar by its judgment dated 31.10.1998. The relief granted, which stands incorporated in the decree sheet, reads:
"The plaintiff has been able to prove a case in his favour which conforms to the prayer made in the amended suit. In view of the same the following order is passed, keeping in view section 56(D) of Specific Relief Act. The defendants are directed to pay him the emoluments as pay and other service benefits for his working in the department under the defendants. After the so called voluntarily retirements, which he has moved, if he has voluntarily joined his services in the department on the principle s of no work no pay. Also defendants are directed that when the plaintiff has put his services till the date of his superannuation on 1.11.1996. So after retirement of the plaintiff his case be also progressed in terms of service Rules and regulations for future claims by way of gratuity and family pension. The suit is accordingly disposed of."
4. In the application for execution of the decree, which was filed on 2.2.2002, respondent on 10.4.2003 moved an application seeking correction in the judgment and decree dated 31.10. 1998 to the extent of deleting the term "keeping in view section 56(D) of Specific Relief Act" from there. Ld. trial Executing Court after obtaining objections from the petitioners/judgment debtors disposed of this application by the order dated 2.7.2003. In the first part of this order, ld. trial Court in exercise of power under section 47 C.P.C. read with sections 152 & 152-A C. P. C. recast the decree sheet thereby in effect deleting the term "keeping in view Section 56(d) of Specific Relief Act" from the decree. The recast decree to read as:
The defendants are directed to pay him (plaintiff/decree holder) the emoluments as pay and other service benefits for his working in the department under the defendants, after the so called voluntarily retirements, which he has moved, if he has voluntarily joined his services in the Department on the principle s of "no work no pay". Also defendants are directed that when the plaintiff has put his services till the date of his superannuation on 1.11.1996, so after retirement of the plaintiff, his case be also progressed in terms of service rules and regulations for future claims by way of gratuity and family pension."
5. Ld. trial Court, however, did not stop there and in the 2nd part of the order discussed the merit of the case and effected further rectification in the decree. Operative portion of the order passed in this regard needs a reference and is reproduced as:
"That being so, "the lien as provided under Article 37 of CSR is admissible". Accordingly the controversy is settled in these terms and shall be read as part of rectified decree. The judgment debtors be issued fresh notice alongwith copy of this order to comply with the decree in letter and spirit, failing which this court shall have no option, but to adopt coercive measures. Let file come up for further proceedings on 24.7.2003."
6. Petitioners questioned the order dated 2.7.2003 passed by the ld. trial Court in appeal before ld. Principal District Judge, Srinagar. Ld. District Judge, however, dismissed the appeal holding that no appeal lies against an order passed under section 47 of the C. P. C. and further observing that the appellants shall not be precluded from calling into the question the order in appropriate proceedings before competent forum. Hence this revision petition came to be filed before this Court.
7. Ld. Dy. Advocate General, Mr. Allah-ud-din, laid stress to project that ld. tria
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