Lakshmi Thankachi v. N. Narayana Pillai — 1971 DIGILAW 238 (MAD)

Order.- First Plaintiff, Lakshmi Than-kachi has preferred the civil revision petition against the order on I.A. No. 92 of 1967 in O.S. No. 509 of 1964 on the file of the District Munsif’s Court, Padmanabhapuram amending the final decree on a petition filed by defendants 1 to 3 under sections 151, 152 and 153 of the Code of Civil Procedure. Under the terms of the preliminary decree the petitioner is entitled to the southern 5/8th share of the suit property and defendants 7 and 8 are entitled to the northern 3/8th share of the said property as per the joint endorsement of the partners. A Commissioner was appointed in the final decree proceedings. There is dispute between the parties as to whether the petitioner is liable to pay for improvements prior to 1095 (M.E.) corresponding to 1920. In his report, the Advocate-Commissioner has given the value of the improvements both for the period upto 1095 (M.E.) and for the subsequent period and mentioned the total value of the improvements also. Unfortunately the question whether the petitioner is liable to pay compensation for improvements effected prior to 1095 M.E. was not gone into as will be evident from the following final judgment passed by the Principal District Munsif on 8th November, 1966. “Heard, There will be a decree for partition and redemption in terms of the report of the Commissioner. It is adopted. Commissioner’s plan will be appended to decree.” In the final decree drafted by the trial Court the petitioner was directed to pay a sum of Rs. 2,512-50 for improvements which relate to only to the period subsequent to 1095 (M.E.) and not for the entire period. When the final decree was executed and the petitioner paid the amount and took possession of her share of the suit property, defendants 1 to 3 filed I.A. No. 92 of 1967 to amend the decree and the Principal District Munsif allowed the amendment with the result that the petitioner has to pay not only Rs. 2,512-50, the value of the improvements for the period subsequent to 1095 (M.E.) but also Rs. 3,087-75 as the value of the improvements for the period prior to 1095 (M.E.) amounting in all to Rs. 5,600-25. The grievance of the petitioner is that there was really no enquiry on the crucial question whether the petitioner is liable to pay for improvements effected prior to 1095 (M.E.). 3,087-75 as the value of the improvements for the period prior to 1095 (M.E.) amounting in all to Rs. 5,600-25. The grievance of the petitioner is that there was really no enquiry on the crucial question whether the petitioner is liable to pay for improvements effected prior to 1095 (M.E.). The final judgment has not been amended and it is possible to read the final judgment along with the Commissioner’s report as supporting the case of either party. In fact the petitioner’s grievance is that even under the terms of the deed, of othi Exhibit A-1, dated nth February 1089 she is liable for improvements only subsequent to 1095 (M.E.) and that the mortgagees themselves paid only Rs. 2,000 by way of compensation to the prior mortgagees at the time when they redeemed the same under Exhibit B-1. 2. Learned Advocate for the contesting respondents raised the preliminary objection that once the final decree has been amended, the remedy of the petitioner is to prefer an appeal against it and that a revision is not competent. Under section 115 of the Code of Civil Procedure, this Court can exercise powers of revision only in cases in which no appeal lies thereto. In S.S. Khanna v. F.J. Dillon1, the Supreme Court has held that if an appeal lies against the adjudication, directly to the High Court, or to another Court from the decision of which an appeal lies to the High Court, it has no power to exercise its revisional jurisdiction, but where the decision itself is not appealable to the High Court directly or indirectly, exercise of the revisional jurisdiction by the High Court would not be deemed excluded. It is not and cannot be disputed that an appeal lies from the amended final decree and that a second appeal lies to this Court. In Viswanathan Chetty v. Ramanathan Chetty1, a Bench in this Court held that a Civil Revision Petition was not maintainable when the petitioner (defendant) had remedy by way of appeal against the amended decree. It is not and cannot be disputed that an appeal lies from the amended final decree and that a second appeal lies to this Court. In Viswanathan Chetty v. Ramanathan Chetty1, a Bench in this Court held that a Civil Revision Petition was not maintainable when the petitioner (defendant) had remedy by way of appeal against the amended decree. Simhagiri Dora v. Zamindarini of Chemudu2, relates to a case where the decretal part of a judgment was amended to bring it into conformity with its earlier portion and the decree was also amended and brought into conformity with the amended judgment, Horwill, J. held that no revision lies against the order allowing amendment as the alternative remedy of appeal against the amended decree is available. In Pallappa Naidu v. Venkatanarappa 3 , Viswanatha Sastri, J., referred to the judgment of the Division Bench in Viswanathan Chetty v. Ramanathan Chetty 1 , and the conflict of decisions both prior and subsequent to it. He has observed that though opinion was oscillating in this Court till 1940, still, as a result of a series of decisions given with reference to Madras Act IV of 1938, it has become the settled view of this Court that an order allowing an amendment of a decree is not liable to revision and that the remedy of the aggrieved party is only by way of an appeal. He has also referred to the decision of Horwill, J. in Simhagiri Dora v. Zamindarini of Chemudu 2 , referred to above. He has observed that he must follow these later decisions and hold that the revision petition was not maintainable. 3. The above decisions of Horwill, J. and Viswanatha Sastri, J. were considered in Patti Amma v. Raman Nair 4 , where a different view was taken. The learned Judges who decided the case has pointed out the distinction between the two remedies, namely that one is a remedy against the order amending the decree or judgment itself and the other is a remedy against its after effects, namely, the amended decree passed in pursuance of an order which is attacked under section 115 of the Code of Civil Procedure.. In Bai Shri Vaktuba v. Agarsangji Raisangji1, a Division Bench of the Bombay High Court has held that an order under section 206 of the Civil Procedure Code,, (Act XIV of 1882) can be dealt with in revision under section 622 of the same Code. In Mulla’s Code of Civil Procedure, Volume 1, 13th Edition at pages 590 and 591 it is stated that a decision under section 152 granting an application for amendment is an order and not a decree and. the decision may, therefore, be the subject of revision under section 115 of the Code of Civil Procedure. It is clear from the passage at page 519 of the book that it has been so held by the High Courts of Calcutta, Allahabad and Bombay in cases under corresponding section 206 of the Code of 1882 and a different view has been taken by the High Court of Madras. Having regard to the conflict of decisions on this point and the fact that the decisions in Simhagiri Dora v. Zamindarini of Chemudu2, and. Pallappa Naidu v. Venkatanarappa3, are those of single Judges, I consider that the following question, whether an order of a Subordinate Court amending a decree or judgment under section 151 or 152 of the Code of Civil Procedure, could be revised under section 115 of the Code of Civil Procedure, though an appeal could be preferred to this Court against the decree so amended either directly or after an intermediate appeal is of sufficient importance to be decided by a Bench of this Court. The papers are ordered to be placed before the Hon’ble the Chief Justice for orders as to posting this reference before a Bench. Pursuant to the above order of reference the case came on before the Division Bench. P. Anantakrishnan Nair, for Petitioner. T.R. Rajagopalan for S. Padmanabhan, for Respondents 1 to 8 and 10. Respondents 9 and 11 not represented. The Judgment of the Court was delivered. by K. Veeraswami, C.J. - The petition is to revise an order of the Principal District Munsif of Padmanabhapuram on an application made by the mortgagee-defendants under sections 151, 152 and 153 of the Code of Civil Procedure, for amendment of the final decree. The suit was instituted by the petitioner for redemption of a mortgage. by K. Veeraswami, C.J. - The petition is to revise an order of the Principal District Munsif of Padmanabhapuram on an application made by the mortgagee-defendants under sections 151, 152 and 153 of the Code of Civil Procedure, for amendment of the final decree. The suit was instituted by the petitioner for redemption of a mortgage. A preliminary decree was passed on 20th December, 1965, which directed allotment of the southern 5/8th share to the petitioner and the northern 3/8th share to defendants 7 and 8. This was done on a joint endorsement of the concerned parties. Pending an application made by the petitioner for passing a final decree, the mortgagee-defendants applied for appointment of a commissioner to value the improvements. According to them, they were entitled to the value of the improvements from 1886, but the petitioner admitted the same only for the period subsequent to 1920. In view of this controversy, the Munsif appointed a commissioner by an order dated 13th July, 1966, by which he directed the commissioner to report as to the value of the improvements from 1866 down to 1920, and separately for the subsequent period. This the commissioner reported, but he also totalled up the figures referable to both the periods and gave the consolidated amount. The earlier application for passing a final decree was then taken up and in November, 1966, a brief order was made which simply said that there would be a decree for partition and redemption in terms of the report of the commissioner and that it was adopted. Accordingly, a final decree was drawn up, which directed the petitioner to pay the mortgagee-defendants Rs. 2,512.50 and the co-mortgagors Rs. 2,632.35. The direction was made covering only the period subsequent to 1920. Thereafter, the mortgagee-defendants applied, as we said at the outset, for amendment of the final decree. This application was allowed. The amendment sought for was for the inclusion in the final decree the value of the improvements for the period from 1866 to 1920. The petition under section 115 of the Code of Civil Procedure, is to revise this order. 5. Before Sadasivam, J., the mortgagee-respondents took a preliminary objection to the maintainability of the revision petition, on the ground that the petitioner had a right of appeal from the amended decree. The petition under section 115 of the Code of Civil Procedure, is to revise this order. 5. Before Sadasivam, J., the mortgagee-respondents took a preliminary objection to the maintainability of the revision petition, on the ground that the petitioner had a right of appeal from the amended decree. Noticing a conflict of judicial decisions in this Court, the learned Judge referred the petition to be disposed«of by a Division Bench. In doing so, he propounded the question whether an order of a subordinate Court amending a decree or judgment under sections 151 and 152 of the Code of Civil Procedure, could be revised under section 115 of the Code of Civil Procedure, though an appeal could be preferred to the High Court against the amended decree. The conflict was between Narayanaswami v. Natesan1, and Viswanathan Chetti v. Rama-nathan Chetti2, the latter taking the view that the revision in such circumstances would not lie. This view found favour with Horwill, J. in Sitnhagiri Dora v. Zamindarini of Chemudu3, whom Viswanatha Sastri, J. followed in Pallappa Naidu v. Venkatanarappa4. With due respect, we are of the view that on a plain reading of the phraseology in section 115, only one view is possible, to wit, that the appeal contemplated by the section for exclusion of its application is one from the adjudication in the particular proceeding which is sought to be revised. The reference in the section to ‘any case’ includes any proceeding in the nature of the petition in this case to amend the final decree. ‘Any case decided’ would mean a decision in the particular proceeding, that is to say, in the instant case, the petition to amend the final decree. In is not disputed that no appeal would lie from that order. That will suffice to enable the petitioner to prefer a revision subject, of course, there being an error of jurisdiction or material irregularity. The fact that an appeal would lie from the amended final decree is to our minds besides the point. Section 115 does not say that apart from the decision in the case, of which a revision is asked for, by reason of the order being incorporated in the final decree an appeal lies, that would exclude the application of the section. If that were the intention of the section, more words would be required. Section 115 does not say that apart from the decision in the case, of which a revision is asked for, by reason of the order being incorporated in the final decree an appeal lies, that would exclude the application of the section. If that were the intention of the section, more words would be required. The view we have taken of the section as it reads also receives support from S. Kanna v. P.J. Dillon1. After elucidating the expressions ‘case’ and ‘case decided’, the Supreme Court observed: “If an appeal lies against the adjudication directly to the High Court or to another Court from the decision of which an appeal lies to the High Court, it has no power to exercise its revisional jurisdiction. But where the decision itself is not appealable to the High Court directly or indirectly, exercise of the revisional jurisdiction of the High Court would not be deemed excluded.” That at once ends the conflict pointed out by Sadasivam, J. and the prevailing view is and ought to be that where no appeal lies from the adjudication in a particular proceeding, this Court’s jurisdiction under section 115 is not excluded. We hold, therefore, that the petition is maintainable. 6. It is not in controversy before us that the Munsif at no time decided as to the period or periods in respect of which the mortgagees would be entitled to the value of improvements from the mortgagors. The order appointing the commissioner merely directed him to ascertain the value of improvements for two periods separately. The Munsif who passed the order in the final decree proceeding does not appear to have applied his mind to the earlier orders that upon that footing the petitioner would be liable for the value of improvements only for the period subsequent to 1920. In the circumstances, it is obvious that there was no clerical mistake and there was no question of bringing the decree in accordance with the judgment, for, as we said, there was no decision at all as to the period in respect of which the petitioner should be made liable for the value of improvements. The order of the Court below is, therefore, set aside. 7. If we leave the matter there, we are afraid that an injustice may occur. The order of the Court below is, therefore, set aside. 7. If we leave the matter there, we are afraid that an injustice may occur. We consider, therefore, that the application filed by the mortgagees should be treated as one asking the Court below to decide the question whether the petitioner would be liable for improvements for the earlier period commencing from 1866 and for that purpose to re-open the final decree. We direct the Court below to treat the application accordingly and dispose it of according to law. The petition is allowed. No costs. V. S. --------- Petition allowed ;Matter Remitted.