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2018 DIGILAW 238 (JK)

Khairati Lal v. Tara Chand

2018-04-18

DHIRAJ SINGH THAKUR

body2018
JUDGMENT : Dhiraj Singh Thakur, J. 1. This is a petition filed by the petitioners under Section 104 of the Constitution of Jammu and Kashmir, challenging the order dated 20.09.2016 passed by the Court of learned sub Judge, Samba whereby an application filed by the respondents under Section 152 of the Code of Civil Procedure, Svt. 1977 was allowed and decree dated 24.09.1977, passed by the court of learned Munsiff, Samba in file No. Civil Suit 08 of 1967 amended. 2. The main ground urged by the learned counsel for the petitioners is that the learned Sub Judge, Samba had no jurisdiction to entertain or allow the application under Section 152 of the Code of Civil Procedure on the ground that it was neither the court, which had issued the decree nor was it the appellate court. 3. Briefly stated the material facts are as under: 4. A civil suit for declaration and injunction came to be filed in the court of learned Munsiff, Samba, seeking a declaration that only the plaintiffs were the pujaris and entitled to receive the offerings of Chichi Devi Asthan situate at village Nandani Tehsil Samba and that the defendants or any other person had no right to interfere in the rights of the plaintiffs to act as Pujaris of the Asthan of Chichi Devi Temple. A consequential relief of permanent injunction was also sought against the defendant Nos. 1 and 3 restraining them from appointing any other person as the pujari at the Asthan with a further prayer to restrain defendant No. 2 to act as pujari for the said Asthan. 5. By virtue of judgment and order dated 24.9.1977, the trial court ordered as under: "Hence, a decree is passed in favour of the plaintiffs with the declaration that the plaintiffs are entitled to be Pujari and to worship and receive to the offerings made to the Asthan of Chichi Devi (Temple) in Khasra No. 11 and 11 min situated at village Nandni Tehsil Samba and the Defendants and all others are restrained to interfere with right of worship and receive the offerings of the plaintiffs. Defendant No. 2 Atma Ram is restrained to act as a Pujari in the Temple of Chichi Devi. The suit is decreed with costs." 6. A decree sheet was also prepared based upon the aforesaid judgment. Defendant No. 2 Atma Ram is restrained to act as a Pujari in the Temple of Chichi Devi. The suit is decreed with costs." 6. A decree sheet was also prepared based upon the aforesaid judgment. However, it appears that a Civil 1st appeal was filed before the learned Sub Judge, (CJM) Jammu on 05.10.1977 but was dismissed vide judgment and order dated 20.07.1981. A Civil Second appeal was preferred bearing No. 85 of 1981 before the High Court. By virtue of order dated 29.07.1981, the same was admitted and notice was issued to the respondents-decree holders. Finally, it appears that by virtue of judgment and order dated 16.11.2000, the appeal was dismissed on the ground that there was no substantial question of law arising in the same and that there were concurrent findings of the courts below. 7. It appears that on 27.11.2008, an application came to be filed in terms of Section 152 of the Code of Civil Procedure before the court of Learned Sub Judge, Samba wherein it was urged that the decree sheet prepared by the court of learned Munsiff, Samba did not correctly reflect the spirit of the judgment and order dated 24.09.1977 passed by the said court. 8. It was urged that the decree sheet did not contain the relief of permanent prohibitory injunction granted in favour of the plaintiffs-decree holders though the said relief found a place in the judgment passed by the trial court and it was also urged in the said application that this fact was noticed when the executing court refuse to execute the decree to that extent. 9. Objections to the said application was filed and after considering the same, by virtue of judgment and order dated 20.09.2016, which is impugned in the present petition, the learned Sub Judge, Samba allowed the amendment as prayed. By virtue of the same order, an application filed on 11.07.2016, seeking amendment of the decree under Section 152 read with Section 153, 151 of the Code of Civil Procedure by the petitioners herein was dismissed. In the said application, the petitioners had sought an amendment to the extent that the words "and all others are restrained to interfere to the right of worship and receive the offerings of the plaintiff' was an accidental slip by the court and therefore, was required to be deleted from the judgment and decree. 10. In the said application, the petitioners had sought an amendment to the extent that the words "and all others are restrained to interfere to the right of worship and receive the offerings of the plaintiff' was an accidental slip by the court and therefore, was required to be deleted from the judgment and decree. 10. Counsel for the petitioners challenges the judgment and order impugned dated 20.09.2016 primarily on the ground that the learned Sub Judge, Samba had no jurisdiction to entertain or allow the application under Section 152 of the Code of Civil Procedure as it was neither the court, which had passed the decree nor was it the appellate court. 11. It was submitted that the first appellate court in any case was sub Judge, Jammu, which had entertained the appeal from the judgment and decree passed by the Learned Munsiff, Samba and further that the Civil Second Appeal had also been entertained against the appellate decree by the High Court and subsequently dismissed. Applying the principle of Merger, it was sought to be urged that if at all a prayer for amendment of the decree had to be made before any court, the same ought to be have been made before the High Court and not before the court of learned Sub Judge, Samba. 12. In addition to this, it was also urged that the applicant, who had filed the application for amendment of the decree under Section 152 of the Code of Civil Procedure had no locus as he was not the decree holder at all. 13. In support of his assertion, learned counsel for the petitioners, Mr. Rahul Bharti, placed reliance upon AIR 1974 SC 1380 , M/s. Gojer Brothers (P) Ltd. v. Shri Rattan Lal Singh, Samarendra Nath Sinha and another v. Krishna Kumar Nag, AIR 1967 SC 1440 and AIR 1963 SC 1124 , Collector of Customs, Calcutta v. East India Commercial Co. Ltd., Calcutta and Ors. 14. Counsel for the respondents, Mr. V.R. Wazir, on the other hand tried to urge that the court was within its jurisdiction to entertain and allow the application for amendment of the decree. 15. Heard learned counsel for the parties. 16. Ltd., Calcutta and Ors. 14. Counsel for the respondents, Mr. V.R. Wazir, on the other hand tried to urge that the court was within its jurisdiction to entertain and allow the application for amendment of the decree. 15. Heard learned counsel for the parties. 16. Section 152 of the Code of Civil Procedure envisages the correction in the judgments, decrees or order on account of accidental slips or omissions or clerical or arithmetical mistakes which power can be exercised either by the court of its own motion or on the application of any of the parties. 17. Section 153(A) of the Code of Civil Procedure envisages that the powers to amend the judgment and decree under Section 152 can be exercised by the court, which had passed the decree or order in the first instance notwithstanding that the dismissal of the appeal has the effect of confirming the decree or order. This, however, applies in a situation where the appeal is dismissed under Rule 11 of Order 41. In the present case, admittedly, the Civil Second Appeal was not dismissed by the High Court in terms of Rule 11 of Order 41, but had been dismissed in terms of Rule 12 of Order 41 after admitting the said Civil Second Appeal and after hearing the parties post service of notice upon the respondents. The dismissal of the Civil Second Appeal, in those circumstances, cannot be said to be summary in terms of Section 153(A) of the Code of Civil Procedure. The judgment and decree passed by the court of Munsiff, Samba, therefore, had merged with the judgment and decree passed by the High Court in Civil Second Appeal dismissed on 16.11.2000. 18. A Constitution Bench of the Apex Court in Collector of Customs, Calcutta v. East India Commercial Company Limited, AIR 1963 SC 1124 while dealing with the issue of Merger stated as under: "5. It is this principle, viz., that the appellate order is the operative order after the appeal is disposed of, which is in our opinion the basis of the rule that the decree of the lower court merges in the decree of the appellate court, and on the same principle it would not be incorrect to say that the order of the original authority is merged in the order of the appellate authority whatsoever its decision-whether of reversal or modification or mere confirmation. This matter has been considered by this Court on a number of occasions after the decision in Saka Venkata Subba Rao's case. In A. Thangal Kunju Mudaliar's case (1), though the point was not directly in issue in that case, the court Court had occasion to consider the matter (see p. 1213) and it approved of the decisions of the PEPSU, Nagpur and Allahabad High Courts, (referred to above). Then in Commissioner of Income-tax v. Messrs. Amritlal Bhogilal and Company (2), a similar question arose as to the merging of an order of the income-tax officer into the order of the Appellate Assistant Commissioner passed in appeal in connection with the powers of the Commissioner of Income-tax in revision. Though in that case the order of registration by the Income-tax officer was held not to have merged in the order of the Assistant Commissioner on appeal in view of the special provisions of the Income tax Act, this Court observed as follows in that connection at p. 720:- 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 affirmable 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." 19. It needs to be highlighted that insofar as Section 153(A) of the Code of Civil Procedure Svt. 1977 as applicable in the State of Jammu and Kashmir is concerned, the same was inserted by way of an amendment w.e.f., 15.08.1983. 20. The aforementioned judgment was subsequently followed by the Apex Court in M/s. Gojer Brothers (P) Ltd. v. Ratan Lal Singh, AIR 1974 SC 1380 : 21. 1977 as applicable in the State of Jammu and Kashmir is concerned, the same was inserted by way of an amendment w.e.f., 15.08.1983. 20. The aforementioned judgment was subsequently followed by the Apex Court in M/s. Gojer Brothers (P) Ltd. v. Ratan Lal Singh, AIR 1974 SC 1380 : 21. Following the provisions of law as contained in section 152, 153(A) of the Civil Procedure Code as also ratio of the judgments mentioned hereinabove, it becomes crystal clear that the judgment and decree passed by the trial court i.e., Munsiff, Samba had merged in the judgment and decree passed by the High Court upon dismissal of the Civil Second Appeal filed by the judgment debtors. If at all any amendment was required to be incorporated in the judgment and decree in question, the same could have been done only by approaching the High Court and no other forum. In that view of the matter, the learned Sub Judge, Samba had clearly acted without jurisdiction. 22. For the reasons mentioned above, the petition is allowed. Impugned Judgment and decree dated 20.09.2016 passed by learned Sub Judge, Samba is set aside. 23. Disposed of accordingly along with connected applications.