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1961 DIGILAW 152 (ALL)

Deba Nand Naithani v. Jaya Nand

1961-07-25

MITHAN LAL

body1961
JUDGMENT Mithan Lal, J. - This Civil revision, filed by the judgment-debtor, arises out of the amendment of the decree on an application made under Section 152, Civil Procedure Code. by the decree-holders. 2. The decree-holders brought a suit for possession over certain land by removal of encroachment and also for injunction. The suit was decreed "for possession over 1/16 nali of land shaded in yellow colour in Amin's map dated 15th March 1953." There was no order of demolition of any wall or any particular constructions though it was also observed at a later part of the operative portion that "it is unfortunate that a portion of the defendants' house has to be demolished but for this the defendants have to thank themselves." The matter went up in appeal and the decree of the trial court was confirmed. The decree, which was prepared, did not mention anything about the demolition of any construction and so the decree-holders (SIC) an application under Section 15, C.P.C., for amendment of the decree staling that the mistake was accidental or clerical. The learned Munsif of Pauri Garhwal relying upon the case of Chinta Mani v. Debi Prasad, AIR 1934 Allahabad 971 : 1934 ALJ 937, accepted the decree-holders' contention and ordered the amendment of the decree. It is against this order that the present revision has been filed. 3. The main contention of Sri N.D. Pant, learned counsel for the applicant, is that the decree passed by the trial court having been confirmed in appeal the trial court had no jurisdiction to amend the decree because of its merger. 4. I have heard learned counsel for the opposite parties at some length. Except for the solitary case of Chinta Mani v. Debi Prasad, AIR 1934 Allahabad 971 : 1934 ALJ 937, this Court has taken a consistent view that after the trial court's decree is affirmed in appeal the proper court to amend the decree under Section 151, C.P.C. is the appellate Court. Reference in this behalf was made to the authority of Muhammad Sulaiman Khan v. Yar Khan, I.L.R. (XI) All. Reference in this behalf was made to the authority of Muhammad Sulaiman Khan v. Yar Khan, I.L.R. (XI) All. 267, where it was laid down by the Full Bench that where a decree has been affirmed on appeal, "the only decree which can be amended under Section 206 (now 152) of the Code is the decree to be executed, and the decree to be executed is that of the appellate court and not the superseded decree of the first court, though the latter may, if necessary, be referred to for the purpose of executing the appellate decree. The only court which has jurisdiction to amend the appellate decree is the court of appeal." It was followed in Maiku Lal v. Mulaim Singh, A.I.R. 1921 Allahabad 130 : 19 A.L.J. 375 by a single Judge of this Court who held that "on decree passed by the appellate Court it is that court which could amend any errors that may be in a decree passed by the original court." That was also a case under Section 152, C.P.C. In Brij Narain v. Tejbal Bikram Bahadur, 7 A.L.J.R. 507 which is a Privy Council case, it has been held that the court of first instance has no jurisdiction to alter or amend a decree after it has been affirmed in appeal. There is also an authority of Bombay High Court in the case of Hussain Sab v. Sitaram Vighneshwar, AIR 1953 Bombay 122 where the same view was laid down.That authority makes a distinction between appeals dismissed summarily under Or. 41, R. 11 and those decided on merits and after stating the distinction, it has been laid down that "where the decree of the trial court is confirmed in appeal the decree of the trial court merges in the decree of the appellate court and if amendment is sought it should be sought in the appellate Court and not in the trial court." 5. None of the first three authorities appear to have been brought to the notice of the learned single Judge deciding the 1934 case of Allahabad who thought that it would be "highly inconvenient if it were necessary for such mistakes to form the subject of application in the High Court. None of the first three authorities appear to have been brought to the notice of the learned single Judge deciding the 1934 case of Allahabad who thought that it would be "highly inconvenient if it were necessary for such mistakes to form the subject of application in the High Court. If the order of the High Court is desired, an application may be made in review." With all respects to my learned brother I have to differ from his view because I am of opinion that once a decree has been affirmed in appeal the trial court's decree merges in the appellate decree and if any amendment is sought by means of Section 152 it must be done by moving an application in the appellate court and not in the trial court. 6. Learned counsel for the opposite parties has contended that the principle of merger should not apply to the decrees which have been confirmed in appeal though it may apply to other cases where there has been any variation in or reversal of the trial court decree. This view does not find support from the authorities and cannot be accepted because the very principle of merger is based on the fusion of the trial court decree into a higher decree. The learned counsel for the other side has further contended that even if there is merger it is for certain purposes and the operation of the decree passed by the trial court cannot be deemed to have been interrupted where the decree in appeal is merely one of dismissal. This may be true in certain cases and in fact this observation has been made by their Lordships of the Supreme Court in the case of State of U.P. v. Mohammad Nooh, A.I.R. 1958 S.C. 86 at page 95 where they have observed: - "Whatever be the theory under other systems of law, under the Indian Law and procedure an original decree is not suspended by the presentation of an appeal nor is its operation interrupted where the decree on appeal is merely one of dismissal. ......The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective." 7. The aforesaid observations of their Lordships were made in quite a different context. ......The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective." 7. The aforesaid observations of their Lordships were made in quite a different context. In the present case the point involved is of the jurisdiction, that is which court will have jurisdiction or power to deal with an application under Section 152, C.P.C., after an appeal against such a decree has been decided on merits. This has nothing to do with the continued operation of the trial court decree nor is it any body's case that the decree of the trial court remained suspended by the presentation of an appeal. The simple point for determination in the case is as to whether an application under Section 152 should be filed in the appellate court which affirmed or varied the decree or in the trial court which tried the suit and passed the first decree. It is only in this context that a reference has been made to the principle of merger. 8. The principle of merger also appears to have been upheld by their Lordships of the Supreme Court in two other cases: Commissioner of Income-tax v. M/s. Amrit Lal Bhogilal Co., A.I.R. 1958 S.C. 868 and Sitaram Goel v. The Municipal Board, Kanpur, A.I.R. 1958 S.C. 1036. These two cases will show that the Supreme Court is also of opinion that a decree of the trial court gets merged into that of the appellate Court whether the appellate court affirms or reverses or modifies the decree. 9. On the principle of merger it may also be worth-while to refer to two cases of review in which the principle of merger of the trial court decree into the appellate court decree has been laid down. In this connection a reference may be made to the authority of Ram Baksh v. Mt. Rajeshwari Kunwar, A.I.R. 1948 Allahabad 213 : 1948 A.L.J. 114 wherein the Division Bench held that: - "When once a decree or order is affirmed on appeal by a superior Court, it is not open to the lower Court which passed the decree to entertain an application for review. Rajeshwari Kunwar, A.I.R. 1948 Allahabad 213 : 1948 A.L.J. 114 wherein the Division Bench held that: - "When once a decree or order is affirmed on appeal by a superior Court, it is not open to the lower Court which passed the decree to entertain an application for review. The test undoubtedly is whether the decree passed by the superior Court is such that the decree passed by the lower court has been merged in it.....But, where an appeal is dismissed on the ground that it was incompetent as there was no provision in law for the appeal, the case falls within the purview of Or. 47 R. 1 (i) (b) and the above principle has no application." 10. The same view appears to have been reiterated in a subsequent Full Bench case of Behari Lal v. M. M. Gobardhan Lal, A.I.R. 1948 Allahabad 353 : 1948 A.L.J. 312. There is also an earlier authority of Sheo Balak Singh v. Mahabir Singh, A.I.R. 1931 Allahabad 704 : 1931 A.L.J. 945. That was also a case of review and it was held that "once a decree is affirmed by the High Court it merges into the decree of High Court and it is no longer open to the lower Court to vary that decree by way of review." A reference may also be made to the case of Hafiz Mohd. Yusuf v. The Custodian General, Evacuee Properties, 1954 A.L.J. 114, in which the earlier view of this Court was affirmed by holding that where an appeal has been heard and decided it is the decree of the appellate court which is operative and not of the trial court and consequently for an application under Section 152, C.P.C. the proper Court to entertain an application under Section 152, C.P.C. after an appeal from the original decree has been decided on merits, will be the appellate court and not the trial court. 11. A plain reading of Section 152, C.P.C., will show that "the court" may at any time correct either on its own motion or on the application of any of the parties, clerical or arithmetical mistakes in judgments, decrees or order or errors arising therein from any accidental slip or omission. 11. A plain reading of Section 152, C.P.C., will show that "the court" may at any time correct either on its own motion or on the application of any of the parties, clerical or arithmetical mistakes in judgments, decrees or order or errors arising therein from any accidental slip or omission. The expression `at any time' is no doubt wide and gives the court a power to make the correction at any time, but this only does away with the question of limitation. The expression `the court' should mean the court the decree of which is sought to be amended or the decree of which (court) is executable. In cases in which the decree of the trial court has been affirmed or varied in appeal the only executable decree is that of the appellate court because in such a case the decree of the lower court shall be deemed to have been superseded. In this view of the matter the Court which will have the jurisdiction to amend such a decree should be the appellate court and not the trial court. I am of opinion that in view of the wordings of the section as well as the law laid down in various authorities referred to earlier the proper court for making an application under Section 152, in cases where an appeal has been decided on merits and the decree of the lower court has merged into the appellate decree, would be the appellate court and not the trial court. The learned Munsif, therefore, who passed an order of amendment of the decree, had no jurisdiction to pass such an order and consequently the order passed by him must be set aside. 13. The revision is allowed with costs and the order passed by the court below is set aside. 14. Record of the case shall be sent back to the court below as early as possible.