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1964 DIGILAW 333 (KER)

Govindan Namboothiri v. Easwaran Namboodiri

1964-11-20

T.C.RAGHAVAN

body1964
Judgment :- 1. The short question in this civil revision petition is whether the amendment of the decree allowed by the lower court is right or without jurisdiction. 2. The decree sought to be amended was originally passed by the Munsiff's Court; and it was taken up in appeal by the 11th defendant before the Subordinate Judge's Court. That Court ultimately confirmed the decree; and it was that decree that was sought to be amended in the Munsiff's Court at the instance of the 11th defendant. Objection was taken by the 13th defendant that that court had no jurisdiction to amend the decree, because it was the appellate decree of the Subordinate Judge that was sought to be amended. The learned Munsiff overruled the objection and allowed the amendment. The Munsif observed that the amendment related to that portion of the decree which was not the subject-matter of the appeal before the appellate court and that it was only an arithmetical or clerical error coming within S.152 of the Code of Civil Procedure that was sought to be corrected. Therefore, the Munsif thought, he had jurisdiction to amend the decree. The question for consideration is whether this is correct. 3. The Supreme Court has held in Collector of Customs, Calcutta v. East India Commercial Co. Ltd. Calcutta AIR. 1963 SC. 1124, that when an appeal was made, the appellate authority could do one of three things, namely, (1) it might reverse the order under appeal; (2) it might modify that order; or (3) it might merely dismiss the appeal and confirm the order without any modification. In all these three cases, the Supreme Court has held, the operative order was the order of the appellate authority, whether it had reversed the original order, modified it or confirmed it. In view of this, I do not think there is any scope for contending that there is a distinction between that portion of the decree which was not appealed against and that portion of the decree which alone was appealed against. In my view, that distinction, even if it existed before, can no more avail after the aforesaid pronouncement of the Supreme Court. I may also, in passing, refer to a decision of this Court by Vaidialingam, J. in P. Kesavan v. Vazhoor Gopalan 1964-1 K.L.R. 155, on the matter. 4. In my view, that distinction, even if it existed before, can no more avail after the aforesaid pronouncement of the Supreme Court. I may also, in passing, refer to a decision of this Court by Vaidialingam, J. in P. Kesavan v. Vazhoor Gopalan 1964-1 K.L.R. 155, on the matter. 4. The counsel of the respondents raised a preliminary objection that no civil revision petition lay to this Court, because a right of appeal was provided against the amended decree. I am of opinion that this objection is the result of a confusion of thought. The petition was to amend the decree; and objection was taken before the lower court that it had no jurisdiction to allow the prayer in the petition, because the relief claimed therein was the amendment of the decree of an appellate court. That objection was overruled and the amendment was allowed-The real question in revision is whether that order was without jurisdiction, and not whether the decree is liable to be set aside. The effect of this contention may a little more be exposed. Suppose the liability under a decree is raised from Rs. 1,000 to Rs. 10,000 as the result of a correction of a clerical error of the figure 1,000 into 10,000, the party will have to pay court fee on Rs. 9,000 and file an appeal, even if the order of amendment was made by a court having no jurisdiction. In the case before me, the incorrect decree was taken up in appeal by the 11th defendant, when he did not point out the mistake to the appellate court. In spite of that, he subsequently obtained an order of amendment from a court having no jurisdiction; and when the 13th defendant questions this order in revision, the preliminary objection is raised! 5. The civil revision petition is allowed; and the order of amendment passed by the lower court is set aside. The 11th defendant will pay the costs of the petitioner in this Court.