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1988 DIGILAW 12 (ALL)

Kundan Devi v. Ram Chandra Jaiswal

1988-01-07

A.P.MISRA

body1988
JUDGMENT A. P. Misra, J. 1. Heard learned counsel for the parties. In pursuance of my order dated 7-5-87 the present application dated 8-5-85 was finally heard today and is being disposed of by means of the present order. 2. The applicant by means of this application has sought for amendment of decree of the trial court on the basis of amendment in the plaint already allowed describing the boundaries. It is relevant to mention here that the case interse between the parties was decided by the trial court on 6-5-68 in pursuance of which a decree was prepared on 23-3-68. Thereafter an application for amendment of the plaint was made which was also allowed on 13-4-68. As against the aforesaid judgment a Second Appeal was preferred before this Court along with Revision no. 905 of 1968 challenging the aforesaid order allowing the amendment. This Court on 11-1-74 finally decided the Second Appeal and also the revision by virtue of which respondent's challenge to the amendment was rejected. Subsequently since the amendment of the decree was not made inspite of that the said amendment was allowed, the present application was moved by Ambrish Kumar alleging to be the heir of the decree holder for a direction to the trial court for making an appropriate amendment in the decree in accordance with the amendment already allowed as aforesaid. On 20-12-85 the present application was allowed. The respondent being aggrieved filed the review application for recalling the order. Subsequently various applications and affidavits were exchanged and finally as aforesaid on 7-5-87 an order was passed for a fresh hearing of this application after giving opportunity to the respondent. Objection was raised on behalf of the respondent that the trial court committed illegality in permitting amendment of the plaint after the passing of the judgment and decree and that is without jurisdiction and thus, no direction should be issued for amendment of the decree. The second objection was raised that amendment of decree is barred by limitation and in view of that the amendment should not be granted by this Court. Finally it was also urged that the appellants are not the heirs and, therefore, direction for amendment of decree should not be passed. 3. Regarding the first point I find this point interse between the parties stands concluded by revision no. Finally it was also urged that the appellants are not the heirs and, therefore, direction for amendment of decree should not be passed. 3. Regarding the first point I find this point interse between the parties stands concluded by revision no. 905 of 1968 where this was specifically raised before this Court in this revision which was rejected. In view of that after lapse of about 13 years, there is no question of permitting the respondent to raise the said point now. 4. Learned counsel for the applicant tried to support his case under section 152 CPC for showing that this Court can always amend the decree. Reliance was placed on the words " or errors whatsoever therein from any accidental slip or omission ". The argument was that apart from the clerical or arithmetical mistakes an amendment to the decree could be made in a case of omission made by the Court. On the other hand, learned counsel for the respondent urged that the aforesaid words qualify the words ' clerical or arithmetical mistake ', therefore, every omission cannot be amended under this provision. The argument raised by the learned counsel for the applicant is not sustainable in view of the language used in that section. The arguments of the learned counsel for the respondent are correct on the language as expressed on that section. The subsequent words, reliance on which has been made by the learned counsel for the applicant, only qualify the preceding words ' clerical or arithmetical mistakes. However, I am examining the present case on the basis of facts as existing in this case whether there is any limitation provided as urged by the learned counsel for the respondent or not. Regarding question whether the applicant is the heir or not of the decree holder, it is open to the respondent to raise this question before the Executing Court. 5. Coming to the second point, it was urged that since there is no provision under the Limitation Act, there is no limitation provided for amending the decree therefore, it would fall under Article 137 of the Limitation Act which is residuary article and period therein is three years. It was urged in view of this the preceding amendment of the decree should not be permitted. It was urged in view of this the preceding amendment of the decree should not be permitted. For this reliance has been placed by the learned counsel for the respondent on the case reported in AIR 1969 SC page 1335. Relevant paras are paras nos. 8 to 10. In this decision the question related to the interpretation and the question of limitation in proceeding under section 33-C of the Industrial Disputes Act. The consideration made therein and ratio of that case is that when there is no provision in any of the Articles the residuary Article will apply. The proposition is never in dispute and it could not be doubted. The only question for consideration is whether on the facts of the present case such an amendment as prayed for should be granted or not. In a case when a judgment is made it is duty of the court to prepare a decree in accordance with the judgment. There is no period of limitation provided for preparation of decree in pursuance of the order passed by the Court. In the present case it is not in dispute after the judgment and the order dated 13-4-68 when amendment was allowed, no decree in pursuance to that has been prepared. It is only when the court failed to perform its duty for making the decree in accordance with the judgment, the present application has been made. Question of amending the decree could really arise in a case where the judgment has been made and decree has been prepared and that decree is not in accordance with the judgment pre-existing. It does not conceive of a case where judgment allowing the amendment has come into existence after the decree has already been prepared. It was the duty of the court in accordance with the said amendment to incorporate the decree in pursuance of the same. Having failed to do the same the present applicant has moved the present application before this Court as finally the second appeal and the revision was disposed of by this Court as aforesaid. In view of the aforesaid facts the argument raised by the learned counsel for the respondent is not sustainable in the eyes of law. 6. In view of the aforesaid finding I do not find any ground raised by learned counsel for the respondent for recalling my earlier order dated 20-12-85. In view of the aforesaid facts the argument raised by the learned counsel for the respondent is not sustainable in the eyes of law. 6. In view of the aforesaid finding I do not find any ground raised by learned counsel for the respondent for recalling my earlier order dated 20-12-85. Ad-interim order dated 7-5-87 is hereby, vacated.