Rajendra Kumar v. Lakha Singh — 1990 DIGILAW 622 (ALL)

JUDGMENT N. Lal, Member - This is a restoration application filed by the respondents Rajendra Kumar and Vimal Kumar sons of late Sri Krishan Lal and Smt. Puspa Rani holding power of attorney on behalf of the respondents for setting aside the judgment and order dated 17-11-989 passed by my predecessor in the final disposal of second appeal No. 15 of 1978-79 of district Nainital, Lakha Singh v. Rajendra Kumar arising out of the order dated 17-8-1978 passed by the Commissioner, Kumaun Division, Nainital in the execution proceedings in suit under section 229-B/209 of U.P. Zamindari Abolition and 1 and Reforms Act, to be called the "Act" hereinafter. 2. Briefly speaking the facts of the case are that in pursuance of the decree passed in the suit of execution proceedings were initiated at the time of execution proceedings the order of amendment was passed by the trial court on 9-11-1976 whereby plot number which was the subject matter in dispute was amended in the decree on the request of Respondents Rajendra Kumar and others and Sri Lakha Singh came in appeal before the Commissioner against the order which was dismissed on 17-8-1978 by the Commissioner Kumaun Division, Nainital and the order of the trial court was confirmed The appellant Lakha Singh therefore came before this court in second appeal which was decided under the impugned judgment and order dated 17-1-1989 passed by my predecessor whereby the appeal has been allowed and the orders passed by both the courts below have been set aside. 3. The restoration application is supported by an affidavit filed by Smt. Pushpa Rani widow of late Sri Krishan Lal resident of Refugee Colony Kata Dongi Road, Haldwani district Nainital Counter-affidavit has been filed by Sri Puran Singh son of Sri Lakha Singh, the appellant as pairokar of the appellant Lakha Singh. 4. I have heard the learned counsels for the parties and have perused the record available. 5. Both the learned counsels on mutul agreement have advanced arguments on merits of the appeal also together with the merits of the restoration application against the order of this court under consideration. 6. 4. I have heard the learned counsels for the parties and have perused the record available. 5. Both the learned counsels on mutul agreement have advanced arguments on merits of the appeal also together with the merits of the restoration application against the order of this court under consideration. 6. The learned counsel for the applicant-respondent has contended that no notice or summon was ever served on the respondents or on Smt. Pushpa Rani holding power of attorney for the respondents Rajendra Kumar and another nor the respondents have ever filed any vakalatnama to contest the appeal in this court. Thus it is clear from the record that the impugned judgment and order passed by this court is ex parte and must be set aside in the interest of justice to afford opportunity to the respondents to plead their case before the appeal is finally disposed of. Advancing the arguments on merits of the appeal the learned counsel for the applicant-respondents has vehemently argued that as has been held in 1966 SC 1047 the clerical errors and accidental slips in the decree can always be amended and corrected under section 152 of the CPC even by the trial court in spite of the fact that the decree of the trial court was merged with the decree of the appellate court. Citing 1984 AWC 86 the learned counsel for the applicant-respondent has also contended that the scope of section 153 of CPC is wide enough so far as the correction of decree by the trial court is concerned despite its merger with the decree of superior court. 7. The learned counsel for the appellant-objector on the other hand has argued against the restoration application and his contentions are that it is to be kept in mind that the contesting parties are real brothers and Smt. Pushpa Rani holding the power of attorney on behalf of the respondents is the real mother of both the parties who has all along been contesting the case on behalf of the respondents The learned counsel for the appellant-objector has asserted that from the perusal of record it would be undoubtedly clear that Smt. Pushpa Rani received summons sent by the Board for service on respondent no. 1 and 2 Rajendra Kumar and Vimal Kumar which is proved from the signatures put in by Smt. Pushpa Rani in token of the receipt of summon which are in urdu script and Smt. Pushpa Kani has signed every where in the same script and her signatures with nacked eye on comparison are found to be the same and genuine and her denial about the receipt of summons is the after-thought with a purpose to get the impugned judgment and order of this court set aside. The learned counsel for the appellant-objector has laid very much stress during the course of his arguments on the point that it is clearly proved from the perusal of the order sheets of this court itself that Sri S.S. Agnihotri, Advocate has all along been appearing to represent the respondents in the appeal and has also signed the relevant order sheets in 1985, 1986, 1988 and on 17-1-1989 throughout which is further clear from the records that notices to Sri S.S. Agnihotri as counsel for the respondents have repeatedly been sent by this Court. Going ahead with his arguments the learned counsel for the objector-appellants has further contended that the name of Sri S.S. Agnihotri Advocate find specific mention repeatedly on a number of dates in the order-sheet noted down by the reader of the court in token of the appearance of the counsels and thus it is undoubtedly and evidently proved from record that the respondents have been represented throughout in the appeal and the impugned judgment and order cannot be held to he an ex parte judgment and order against the respondents. According to the learned counsel for the appellant-objector, it is further clear from the record that registered notices were also sent to the respondents Rajendra Kumar and Vimal Kumar and there is a legal presumption of service of such summons sent by registered post after the lapse of thirty days when the summons were not returned unserved. The learned counsel for the appellant-objector has further urged that the signatures put in on the summons in token of receipt of summons for respondents have not been challenged to be the forged signatures of Smt. Puspa Rani and mere denial that she never received any summon cannot be believed. The learned counsel for the appellant-objector has further urged that the signatures put in on the summons in token of receipt of summons for respondents have not been challenged to be the forged signatures of Smt. Puspa Rani and mere denial that she never received any summon cannot be believed. The learned counsel for the appellants-further argued that the behaviour of Sri S.S. Agnihotri Advocate, appearing on behalf of the respondents is also noteworthy inasmuch as he never informed the court that he was not representing the respondents in the appeal and notices were wrongly been sent to him and should not be sent which further proves that he was representing the respondent in the appeal and in para 6 of her affidavit Smt Pushpa Rani has herself admitted that she contacted her counsel on coming to Allahabad which shows that the counsel engaged has been the counsel in this appeal. So far as the merits of the case are concerned the learned counsel for the appellants moved further with his arguments and has said that there are two plots numbers in village records which are 233/5 and 233/5-A and both the plots are separate. Referring to 1964 ALJ 817 (DB) the learned counsel for the appellant has argued that the decree of first appellate court shall merge in the decree passed by the Hon'ble High Court and that the executable decree is that of the highest court of appeal and the ruling of the D. B. shall supercede the opinion expressed by the single Judge. 8. The learned counsel for the applicant-respondents in reply, has laid much stress to envoke the provisions of Section 153A of the CPC and has cited 1984 AWC 86 and has argued that the court of first instance can also correct an error in the decree irrespective of the fact that the decree had merged in the decree of the superior court. The provisions of Section 153-A provides that where an appellate court dismisses an appeal under rule 11 of Order 41 of the CPC the power of subordinate court to amend under Section 152 the decree or order appealed against may be exercised by the court which had passed the decree or order in the first instance not with standing that the dismissal of appeal has the effect of confirming the decree or order as the case may be passed by the court of first instance. In the facts and circumstances of the present case under consideration the authority cited on the interpretation of Section 153A of the CPC does not appear to be applicable simply because the provisions of Section 153-A of CPC are attracted only in cases where the appellate court has dismissed the appeal under Rule 11 of Order 41 of the Code. In the present case under consideration the appeals have not been dismissed either by the first appellate court or by the second appellate court under rule if Order 41 of the CPC as there is nothing on record to show the facts to that effect. Moreover, in the authority cited the Hon'ble High Court has observed that time of hearing of the revision it was suggested by the learned counsel for the applicant that without going into the merits and the view taken by the executing court, this court may now permit the correction of decree and the suggestion was accepted with the observations made afterwards to the effect that without going into the merits of the order under challenge and having regard to the nature of the case the correction of the decree in the manner in which it was corrected by the trial court in the order in question shall be corrected. Thus instead of going into the merits of the order of the trial court the Hon'ble High Court directed the correction of decree itself and consequently it is clear that correction of decree was complete only when it was corrected under the directions of the Hon'ble High Court. Thus this authority is not attracted to the facts and circumstances of the present case under consideration. 9. I have considered the very lengthy arguments advanced by the learned counsels for the parties. Thus this authority is not attracted to the facts and circumstances of the present case under consideration. 9. I have considered the very lengthy arguments advanced by the learned counsels for the parties. So far as the restoration is concerned I totally agree with the contentions made by the learned counsel for the appellant/objector that record of this court clearly establishes that summons sent to the respondents were duly served on them through their mother Smt. Pushpa Rani holding the power of attorney on their behalf and she has put in her signatures in token of receipt of summons which on comparison with the signatures on other papers on record are clearly tallying and can safely be held to be the signatures of Smt. Pushpa Rani in receipt of summons particularly when the process server has submitted a clear note on the summons that the summons were personally served on Smt. Pushpa Rani, the mother of respondents because the respondents were not available on the spot and were reported to have gone out I also endorse the contentions of the learned counsel for the appellant-objector that Smt. Pushpa Rani has not challenged her signatures on the grounds that they have been forged by somebody else and there is no reason why they may not be believed to be the signatures of Smt. Pushpa Rani. It is further clear from the records that Sri S.S. Agnihotri, Advocate has been appearing repeatedly on a number of dates on behalf of the respondents and his name has clearly been noted down by the reader of the court in token of his presence which cannot be doubled Had he not been representing the respondents there would have been no chance for him to have appeared in the court on call of the appeal as to gel his name noted down by the reader in token of his presence in the court. It is also correct view that there is a legal presumption about the service of summons and notices on the respondents after the lapse of thirty days from the date of sending registered notices and summons by the Board. Several notices were also sent to Sri S.S. Agnihotri, Advocate for appearance in the case for respondents and Sri Agnihotri never objected to it nor lodged any protest against such summoning in the case. Several notices were also sent to Sri S.S. Agnihotri, Advocate for appearance in the case for respondents and Sri Agnihotri never objected to it nor lodged any protest against such summoning in the case. The only point which has been pressed by the learned, counsel for the applicant for restoration is that there is no vakalatnama filed by Sri S.S. Agnihotri, Advocate to represent the respondents in the appeal. This point does not carry much weight because some rimes by over-sight due to rush of works the officials of the court may not be in a position to ascertain from record that the counsel appearing for a particular party has actually filed the vakalatnama or not and it is always the duty of the counsel himself to file vakalatnama before putting his appearance in the case it is also true that sometimes when the fact is not pointed out to the counsel that he has not filed any vakalatnama in the particular case, the counsel continues to appear in the case under the impression that vakalatnama might have been filed by his clerk. There is another possibility also that some times some mischief may be played by removing vakalatnama from the record in order to show that the particular party has not been represented in the case and the order passed is ex parte against it. Thus the mere fact that no vakalatnama is found in the record is not enough to prove that Sri S.S. Agnihotri has not been appearing for the respondents in the case particularly in face of overwhelming evidence self explicit from the record is available to prove that the counsel has been representing the respondents. Thus I intend to believe that the respondents were duly served by summons through their mother holding power of attorney for them and were also represented by Sri S.S. Agnihotri, Advocate in the case. 10. So far as the merits of the case are concerned the only controversy is as to whether after the decree of the trial court has been merged in the decree of the appellate court, the trial court itself is empowered to make any amendment in the decree on its own accord, and several legal authorities have been cited before him for and against the justification of the order passed by the learned trial court in the present case under consideration. It is not disputed that after the decree has been passed by the appellate court whether dismissing the appeal summarily and confirming the trial court decree or ordering any variations in the decree, the decree of the trial court shall be deemed to have merged with the decree of the appellate court and the only difference of opinion is whether any amendment can be made by the trial court after that merger. It may be true that clerical errors and, accidental slips may be corrected by the trial court in the decree even after its merger with the decree of appellate court as has been argued by the learned counsel for the applicant-respondents, referring to 1966 SC 1047 but the facts and circumstances of the present case do not attract the applicability of this authority because there are two separate plots existing in the village records and decree has been passed for one particular plot no. 233/5 and the same decree has been confirmed and merged with the decree passed by the first appellate court and the second appellate court and by the Hon'ble High Court in the writ petition ultimately. In my opinion, the trial court can have no jurisdiction to make an amendment in the decree simply under the garb of a clerical mistake which could not be traced out for such a long time. In 1964 ALJ 817 cited by the learned counsel for the appellant-objector it was held that the doctrine of merger applies even where a second appeal has been dismissed by the Hon'ble High Court summarily under Order 41 Rule 11 CPC and in such cases the High Court's decree is the final decree and the decree of the first appellate court merges with it and therefore an application for amendment of the decree of the first appellate court should be made to the High Court. In view of this opinion of the Division Bench of the High Court Allahabad, it is clear that the trial court has got no jurisdiction to order for an amendment in the decree when the decree has merged in the decree passed by the Hon'ble High Court and the same view has been taken in 1984 ALJ 817 Division Bench as cited by the learned counsel for the appellant. The same view has been taken by my learned predecessor in passing the impugned judgment and order in final disposal of this appeal which has been sought to be restored on the grounds of its allegedly been an ex parte judgment and order. It is therefore held that neither the judgment and order dated 17-1-1989 passed by my predecessor is ex parte nor there is any lacuna in the judgment so far as the merits of the appeal are concerned. I therefore totally agree with the judgment and order of my predecessor and endorse it in disposal of this second appeal. 11. In view of the observations made above, the restoration application filed on behalf of the applicant-respondents on 22-9-1989 is dismissed.