Research › Search › Judgment

Himachal Pradesh High Court · body

2012 DIGILAW 408 (HP)

Kusum Kumari v. Krishan Kumar

2012-07-25

DEV DARSHAN SUD

body2012
JUDGMENT : Dev Darshan Sud, J. This petition under Article 227 of the Constitution has been preferred by the petitioner, who was the plaintiff before the learned trial Court, against the order passed by the learned Civil Judge (Senior Division), Court No. 1, Mandi dismissing her application under Sections 151 and 152 of the CPC (hereinafter referred to as CPC) for correction of purported error in the decree. It is undisputed before me that the plaintiff instituted a Civil Suit No. 140 of 1999 which was decreed on 28.9.2001 in favour of the petitioner. It is also not disputed that appeal preferred against this decree by the respondents/defendants was dismissed after contest. RSA No. 491 of 2003 was preferred by the defendants against this judgment and decree of the learned two Courts below which appeal was dismissed in limine on 5th January, 2004. 2. The learned trial Court did not consider the application u/s 152 of the CPC on merits but disposed of the application holding that it was not maintainable since the mandate of Section 153A is that on the basis of doctrine of merger the decree can be amended by the Appellate Court only since it has been contested on merits in the appeal before that Court. In Gojer Bros. (Pvt.) Ltd. Vs. Shri Ratan Lal Singh, AIR 1974 SC 1380 the Court holds: 11. The juristic justification of the doctrine of merger may be sought in the principle that there cannot be, at one and the same time, more than one operative order governing the same subject-matter. Therefore the judgment of an inferior Court, if subjected to an examination by the superior Court, ceases to have existence in the eye of law and is treated as being superseded by the judgment of the superior Court. In other words, the judgment of the inferior Court losses its identity by its merger with the judgment of the superior Court. 19. The fundamental reason of the rule that where there has been an appeal, the decree to be executed is the decree of the appellate Court is that in such cases the decree of the trial Court is merged in the decree of the appellate Court. 19. The fundamental reason of the rule that where there has been an appeal, the decree to be executed is the decree of the appellate Court is that in such cases the decree of the trial Court is merged in the decree of the appellate Court. In course of time, this concept which was originally restricted to appellate decrees on the ground that an appeal is a continuation of the suit, came to be gradually extended to other proceedings like revisions and even to proceedings before quasi-judicial and executive authorities. 3. In Maldar Mahaboob Sab and Others Vs. Allabaksh, AIR 2004 AP 193 , the High Court of Andhra Pradesh holds: 10. Section 153A of the CPC had been introduced by the Amendment Act 1976. This was introduced to resolve the difference of opinion amongst different High Courts as to which of the Courts can amend the decree u/s 152 of the Code of Civil Procedure. It appears that the view taken by the Calcutta, Madras, Allahabad and Rangoon High Courts was that it is the first appellate Court alone that can amend the decree whereas the Bombay and Patna High Courts took the view that it is the Court of first instance along can amend the decree. 11. In this background, it is necessary to refer to some of the judgments, which have been decided by different High Courts, subsequent to the introduction of Section 153 of the Code of Civil Procedure. 12. A full Bench of the Kerala High Court in Kannan and Others Vs. Narayani and Others, AIR 1980 Ker 76 referred to various judgments of the High Courts, including that a Privy Council. In 14 CWN 667 (Privy Council) the Privy Council held that alteration of a decree by the Court, which passed it, if that had been affirmed in appeal, was without jurisdiction. 13. It was further noticed by the Full Bench of the Kerala High Court that the principle laid down in Brij Narain's case (supra) was already taken note of an approved by the Supreme Court in Gojer Bros. (Pvt.) Ltd. Vs. 13. It was further noticed by the Full Bench of the Kerala High Court that the principle laid down in Brij Narain's case (supra) was already taken note of an approved by the Supreme Court in Gojer Bros. (Pvt.) Ltd. Vs. Shri Ratan Lal Singh, AIR 1974 SC 1380 The principle laid down by the Supreme Court in the above said case also necessary to re-extract for ready reference, which is as under: An application of this very principle yields the result that if the Court of appeal confirms, varies or reverses the decree of the lower Court, the decree of the appellate Court is the only decree that can be amended: 14 CWN 667 (Privy Council) ) or that the limitation for executing a decree runs from the date of the decree capable of execution and that is the decree of the appellate Court which supersedes that of the Court of first instance AIR 1926 93 (Privy Council) ; or that if mesne profits are ordered from the date of suit until the expiry of three years after the date of the decree, the decree to be considered is the decree capable of execution so that if the decree of the trial is confirmed in appeal, three years will begin to run from the date of the appellate decree 5 CWN 52 (Privy Council) 14. The Full Bench of Kerala High Court also had elaborately considered the scope of Section 153A and also the purpose of its introduction in the Amending Act, 1976 and eventually held as under: Except in cases to which Section 153A of the CPC applies, where there has been an appeal, the decree under appeal merges in the decree in appeal and it is only the appellate Court that could correct or amend the decree u/s 152 of the Code. 18. In Ramsunder Singh Vs. Most. Pana Kuer and Others, AIR 1979 Patna 5, the Patna High Court held as under: The provisions of S. 152 of the CPC which is applicable in the present case, lay down that a clerical error in judgments, decrees or orders can be corrected by the Court. The question is as to which Court has the jurisdiction in a case where the suit travels up to the appellate stage. The power of correction has been vested in the Court where the mistake is committed. The question is as to which Court has the jurisdiction in a case where the suit travels up to the appellate stage. The power of correction has been vested in the Court where the mistake is committed. It, therefore, follows that if the decree, which is sought to be correct, has been passed by the appellate Court, it is the appellate Court which has got the jurisdiction to set the mistake right. 19. It is the established principle, as held by various High Courts, including the decision of this Court in Annapu Ramanna Vs. Ponduri Sramulu and others, AIR 1958 AP 768 , that a decree of a trial Court will merge in the decree of the appellate Court. 24. Coming to the present case, it is to be noted that the Court of first instance had dismissed the suit and in the appeal the same was reversed and preliminary decree was passed with some inadvertent mistake. In such an event, the judgment of the first appellate Court shall have to be treated as judgment under Order 41, Rule 32 but not under Order 41, Rule 11 of the Code of Civil Procedure. 25. The resultant situation is that the decree passed by the Court of first instance merged with that of the decree passed by the first appellate Court by way of reversal and it is only the judgment and decree of the first appellate Court alone is to be executed, if becomes final, by the Court of first instance i.e., the trial Court. 26. The noticeable aspect in the present case is that when an application had been filed, the same had been returned by the first appellate Court on the ground that it has no jurisdiction u/s 152 of the CPC and accordingly the papers were returned to the petitioner herein. 26. The noticeable aspect in the present case is that when an application had been filed, the same had been returned by the first appellate Court on the ground that it has no jurisdiction u/s 152 of the CPC and accordingly the papers were returned to the petitioner herein. Faithfully following of the orders of the first appellate Court and totally oblivious of the settled position, the petitioner herein had filed the present application u/s 152 of the CPC seeking certain amendments before the trial Court and the trial Court having held that it has no jurisdiction to exercise the power u/s 152 of the Code of Civil procedure, inasmuch as the same had been interfered with by the first Appellate Court by reversing the judgment and decree, rightly 8 dismissed the present application holding that the appellate Court alone can exercise the jurisdiction u/s 152 of the Code of Civil Procedure. 4. Lastly this Court in Devi Roop Vs. Smt. Devku and Others, AIR 2006 HP 114 has followed and applied this principle. 5. Learned Counsel appearing for the petitioner urges that the judgment in Devi Roop's case supports his contention that it is the trial Court which has the jurisdiction to correct the judgment etc. The principle of law as enunciated by this Court is no different from the that in Gojer Bros in which the Supreme Court holds: 21. In Commissioner of Income Tax, Bombay Vs. Amritlal Bhogilal and Co., AIR 1958 SC 868 , the question which arose for decision was whether the order passed by the. income tax Officer allowing the registration of a firm merged in the order passed by the Appellate Assistant Commissioner in the appeals filed by the firm against the order of assessment. If it did, the Commissioner of income tax could not in the exercise of his revisional powers u/s 33B(1) set aside the order of registration passed by the income tax Officer. This Court held on the merits of the matter that though the appellate order of the Appellate Assistant Commissioner was the only order which was valid and enforceable in law, what merged in the appellate order was the income tax Officer's order under appeal and not his order of registration which was not and could not have become the subject matter of an appeal before the appellate authority? The position in regard to the doctrine of merger was stated thus by Gajendragadkar, J. who spoke for the Court: There can be no doubt that, if an appeal is provided against an order passed by a tribunal the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the tribunal it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement. I cannot accept the contention of the learned Counsel appearing for the petitioner that the correction can be carried out by the trial Court itself for the reasons that this Court in Devi Ram's case holds: 19. In view of the law laid down by the Apex Court it is clear that if the decree of the trial Court has merged in the decree of appellate Court then of course the trial Court has no jurisdiction to amend the same. In the present case, however, AI am of the opinion that the decree of the trial Court never merged in the decree of the appellate Court. The appellate Court did not decide the appeal on merits. Since the appellate Court held that the appeal itself was not maintainable and was not properly constituted, there was in fact no properly constituted appeal pending before it and the decision by the appellate Court was not a decision on merits. Section 153A C.P.C. only empowers the trial Court to amend the decree or order even when the appeal has been dismissed in limine. It does not take away the power otherwise vested in the trial Court. As observed above, the principle underlying this Section is the doctrine of merger that once an appellate Court has passed a decision then the judgment of the trial Court will merge in the judgment of the appellate Court and it will cease to have jurisdiction to amend its own judgment, decree or proceedings. As observed above, the principle underlying this Section is the doctrine of merger that once an appellate Court has passed a decision then the judgment of the trial Court will merge in the judgment of the appellate Court and it will cease to have jurisdiction to amend its own judgment, decree or proceedings. The appellate Court only disposed of the matter by holding that Inder Dutt had o right to file the appeal since no decree had been passed against him. Therefore, the question of merger does not apply and Section 153A would not be attracted. The mere fact that the appeal was decided after notice and not in limine would not take away the jurisdiction of the trial Court to amend its judgment and decree because of the fact that there was no decision on the case by the learned District Judge. 6. In these circumstances, I do not find any illegality in the order passed by the learned trial Court which is affirmed. It will be open to the petitioner to choose her remedy in accordance with law. Petition stands disposed of. No order as to costs. All the pending applications also stand disposed of.