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1951 DIGILAW 12 (KER)

Abraham v. Joseph

1951-02-09

SUBRAMONIA.IYER

body1951
Judgment :- The first defendant in O.S. No. 108/1102 on the file of the District Court of Kottayam is the petitioner. The petition is directed against an order passed by the court below amending the decree in the above suit by the inclusion of one half of Rs. 150 and Rs. 863 being the amounts paid or alleged to have been paid by the respondent-decree-holder to the commissioner who was appointed in the case to value the improvements. On the date the decree was passed only the first amount of Rs. 150 had been paid by the decree-holder to the commissioner. On an application by the commissioner for increased remuneration the court appears to have passed an order allowing the latter amount of Rs. 863-4-0 by way of increased remuneration. But according to the rules that amount could not be directed to be paid before sanction in that behalf was obtained from the High Court. The order allowing the enhanced remuneration was, as already mentioned, before the date of the decree. The decree, however, refers only to the amount actually spent by the decree-holder by way of cost in the suit. It does not refer to the right of the decree-holder to get the enhanced remuneration allowed to the commissioner should he have to pay it subsequent to the decree. It is stated that the sanction of the High Court was duly obtained and the payment was actually made subsequently. The petition to amend the decree was with a view to have one half of these two amounts added in the decree by way of costs in favour of the decree holder. The court below has allowed the petition. 2. On behalf of the petitioner it is contended that the provisions regarding amendment of decree are inapplicable to a prayer for including an amount which the plaintiff might be entitled but which the plaintiff had not paid before the decree is passed. Exception is taken only to the second amount of Rs. 863-4-0. So far as the first amount of Rs. 150 is concerned it appears that that amount was actually paid before the date of the decree and, therefore, no objection is taken to include in the decree half of that amount. 3. The only question for consideration, therefore, is whether the court below was right in having directed the inclusion of one half of Rs. 150 is concerned it appears that that amount was actually paid before the date of the decree and, therefore, no objection is taken to include in the decree half of that amount. 3. The only question for consideration, therefore, is whether the court below was right in having directed the inclusion of one half of Rs. 863-4-0 in the decree by way of costs of the decree-holder. The application for amendment was filed on 20-4-1120. Even on that date the amount of excess remuneration of the commissioner had not been paid though subsequently a memo from the commissioner appears to have been obtained and filed by the respondent. 4. The learned counsel for the respondent could not find his way to support the order in so far as the inclusion of the amount paid by him subsequent to the decree in a proceeding to amend the decree. He, however, contended that his application for amendment of the decree can be and ought to be regarded as one in review and if so regarded can be and ought to be allowed. The prayer to regard this petition as one for review is one that is urged before this court. 5. The claim to have this amount included by way of costs to the decree holder is a matter which has first to be considered by the trial court and decided by it. Costs are in the discretion of the Court. Whether the court is going to allow this to the plaintiff or not is a matter dependent entirely upon the discretion. It is not proper for a court of revision to exercise it. The request to regard the petition as on for review cannot, therefore, be granted. 6. As has been already mentioned, in a proceeding to amend the decree it is not competent to a court to take into account events that happened subsequent to the decree. If any event happened subsequent to the decree entitling the party to a greater relief than from that given in the decree that may be a ground for review of judgment and not for amendment of the decree because the correctness of the decree must be considered as on the date when the decree was passed. If any event happened subsequent to the decree entitling the party to a greater relief than from that given in the decree that may be a ground for review of judgment and not for amendment of the decree because the correctness of the decree must be considered as on the date when the decree was passed. On the date on which the decree in this case was passed it is not contended that there was any error in the decree so that there is no scope for amendment of the decree. 7. On behalf of the respondent another point was taken, namely, that pursuant to the order for amending the decree the decree was in fact amended and that having been done the only remedy available to the defendant is to file an appeal against that decree and not file a revision petition against the order allowing the amendment. The point is interesting and perhaps highly controversial. The controversy rather is that no revision will lie against the order allowing the amended decree. It is not necessary in this judgment to refer in more detail to this controversy. Suffice it to refer to a case of the Cochin High Court reported in 34 Cochin 169 where this conflict is considered. There is no authority so far as I can see for the position that when a decree has been amended pursuant to an order for amendment that order ceases to be the subject-matter of a petition for revision in the High Court. 8. The order of the court below is, therefore, reversed in so far as it relates to the inclusion of a half of Rs. 863-4-0 in the decree but is confirmed in so far as it relates to the inclusion of a half of Rs. 150. The order of the court below is modified to the above extent. The rewill be no order for costs in this revision. Petition allowed.