Patna High Court
Parmeshwar Lal And Anr. vs Gokhula Nandan Prasad And Ors. on 18 April, 1984
Equivalent citations: AIR 1984 PATNA 344, 1984 BBCJ 743
JUDGMENT Prabha Shanker Mishra, J.
1. This appeal by the defendants in Title-Partition Suit No. 22 of 1969/38 of 1974 is directed against the judgment and decree of the Third Additional District Judge, Gaya, in Title Appeal No. 124 of 1976/1 of 1979. Partition Suit No. 22 of 1969 was originally decreed ex parte followed by a preliminary decree; and, a title appeal being Title Appeal No. 98 of 1975/11 of 1976 and a miscellaneous case under Order 9, Rule 13 read with Section 151 of the Civil P. C. being Miscellaneous Case No. 24 of 1975 were dismissed, resulting in a proceeding for preparation of the final decree in the said partition suit. After the preliminary decree in the partition suit was prepared, on the basis of a petition filed on behalf of the plaintiffs respondents on the 25th Sep. 1975, in the court of the Third Munsif, Gaya for appointment of a pleader commissioner, to carve out their separate takhta to the extent of their share in accordance with the preliminary decree, the learned Munsif appointed Sri Ganga Prasad, a pleader commissioner, for carving out a separate takhta of the plaintiffs. The pleader commissioner submitted his report which was confirmed by the learned Munsif on the 30th April 1976. The learned Munsif, accordingly, directed for preparation of the final decree which was sealed and signed on the 19th May, 1976. On the 13th Sept. 1976, the plaintiff, however filed a petition in the court of the Munsif IIIrd stating that there has been a mistake in the final decree inasmuch as khata No. 951 was wrongly mentioned as khata No. 931 in the report of the pleader commissioner. The learned Munsif called for a report from the pleader commissioner who submitted his report on the 14th September 1976, and, on the same day, the learned Munsif directed for the correction to be made in the decree in accordance with the report of the pleader commissioner. Sri Parmeshwar Lal alias Parmeshwar Prasad, one of the defendants-appellants, filed an appeal against the final decree on the 22nd September, 1976.
2. A question arose as to whether the decree would be deemed to have been passed on the 30th April, 1976 and thus the limitation for filing the appeal would be reckoned from the said date or it would be deemed to have been passed on the 14th September, 1976, when on the basis of a further report of the pleader commissioner the learned Munsif modified the decree and the period of limitation would be reckoned from the said date. The learned Third Additional District Judge, Gaya, held that the decree would be deemed to have been passed on the 30th April, 1976 and the period of limitation would be reckoned from the said date and, accordingly, the appeal filed on the 22nd September, 1976 was barred by limitation. He also rejected the appellants' contention that he was prevented by sufficient cause in filing the appeal within time and filed the appeal within thirty days of the knowledge of the decree passed by the learned Munsif. He, accordingly, held that the appellant failed to explain each day's delay satisfactorily. The appellants have therefore, filed this appeal against the said judgment.
3. Mr. S. C. Ghose, learned Counsel appearing for the appellants, has contended that there is an apparent error of law committed by the learned Additional District Judge in holding that the decree was passed on the 30th April, 1976 as, according to him, the modification order dt. the 14th September, 1976 also gave rise to a decree and the decree, so modified on the 14th September, 1976 was also appealable. He has submitted in this connection that in a case of preparation of a final decree, the formal expression of an adjudication by the court is truly formal in the sense that it accepts the pleader commissioner's report with or without modification. In the instant case, a further report was called for from the pleader commissioner as to the mistake in the khata number of the property in question and on the pleader commissioner's submitting the further report a formal expression accepting the same again came in the form of a decree by the learned Munsif on the 14th September, 1976. Mr. Gupteshwar Prasad, learned Counsel for the respondent, has, on the other hand, contended that the correction of a clerical nature in a judgment or decree in exercise of the inherent jurisdiction of the court either under Section 151 or, more particularly, under Section 152 of the Civil P. C. (hereinafter called 'the Code') is not a modification of the formal judgment and decree. Such corrections are clerical in nature and do not in any manner affect the formal expression of an adjudication as regards the determination of the rights of the parties with regard to all or any of the matters in controversy in the suit.
4. In order to appreciate the contentions of the parties, I may extract the definition of the word "decree" as incorporated in Section 2 (2) of the Code which runs as follows:
"(2) 'decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include-
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation.-- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final."
5. It is of importance to notice that a decree is the conclusive determination of the rights of the parties with regard to all or, any of the matters in controversy in the suit and may be either preliminary or final; but it is a formal expression of an adjudication by the Court. Any alteration in this formal expression shall undoubtedly be a decree; but in the case of a clerical correction, this formal expression of an adjudication of the conclusive determination of the rights of the parties is not at all varied, and there is no modification and/or alteration of the decree as expressed by the Court. Mr. Ghose has relied on the ratio laid down in the case of Smt. Sushila Devi v. Smt. Madhuri Prasad, 1980 BBCJ (HC) 374. In Smt. Sushila Devi's case, the original decree declared the title of the plaintiffs only over the disputed verandah indicated by letters ABCD in the map of the pleader commissioner and the defendant-appellants were directed to remove the encroachment therefrom. By the amendment "the western wall of the varandah" was inserted in the decree as being the property of the plaintiffs so as to form part of the letters ABCD. There was a further amendment in regard to the amount of cost and the question arose whether after the amendment of the decree an appeal can be filed against the same. M. P. Singh, J. answered in the following words :
"When the decree was amended, the amendment became a part of the decree and appeal is maintainable as against the amended decree."
Mr. Ghose has submitted that in the instant case, the learned court below accepted the report of the pleader commissioner and the same was confirmed by the court on the 14th September, 1976, and, as such, an amended decree came into effect. Now, the question is, whether in face of the order dated the 30th April, 1976, the appellants could legitimately file an appeal against an amended decree dated the 14th September, 1976.
6. As noticed by me earlier, formal expression of an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit is a decree, and so is the modification made by the Court in the said formal expression of the adjudication. In the instant case, although on 30-4-1976, the learned Munsif disposed of the suit by accepting the pleader commissioner's report, thus incorporating the pleader commissioner's report in his adjudication for the preparation of the final decree, he entertained a petition filed on behalf of the plaintiffs, directed the pleader commissioner to submit a report and once again incorporated the report of the pleader commissioner in his formal adjudication for the preparation of the final decree, and directed for the modification in the decree accordingly.
This modification is undoubtedly one which affected the adjudication by the learned Munsif in respect of the properties in controversy. It was not just a formal clerical correction of a mistake either in the contents of the judgment or the decree. I have no hesitation in holding that the order of the learned Munsif modifying his earlier order D/- 30-4-1976 passed on 14-9-1976 is also a decree and appeal lies against the same. The authorities which say that corrections made in exercise of the power under Section 151/152 of the Civil P. C. do not affect the adjudication as regards the determination of the rights of the parties have no application on the facts of the instant case.
7. Since I have held that the appeal is maintainable against the modified decree and the modification was made by the learned Munsif on 14-9-1976, the party affected by the said decree was entitled to file an appeal within the statutory period prescribed under the limitation Act, that is to say, within thirty days. The defendants-appellants filed Title Appeal No. 124 of 1976 on 22-9-1976. The defendants, therefore, filed the appeal within the prescribed time against the order passed on 14-9-1976. The appeal, therefore, was not barred by limitation.
8. As the appeal was filed within time by the defendants, there was no occasion for the Court below to demand from the appellants explanation of each day's delay in filing the appeal. No application for condonation of delay was necessary. Nothing in regard to the condonation of the delay was required to be shown and proved by the appellants.
9. Substantial questions of fact and law have been indicated by the learned counsel for the appellants arising from what the learned Munsif did in appointing the pleader commissioner for the allotment of the shares to the parties and the procedure adopted by him in this regard. One of the arguments advanced before me is that the learned Munsif committed error of law in appointing the pleader commissioner without giving notice to the defendants. I am not expressing, however, any opinion as to the error committed in this regard by the learned Munsif because the learned 3rd Additional District Judge has not adverted his attention to the merits of the appeal and disposed of the appeal only on the question of limitation. The best course, in my opinion, is to leave the parties to contest the merit in the appeal before the Additional District Judge.
10. In the result, this appeal is allowed. The judgment and decree in Title Appeal No. 124 of 1976/1 of 1979 are hereby set aside. The case is remanded back to the 3rd Additional District Judge, Gaya, for rehearing of the said title appeal as if the same has been filed within a period of limitation and disposal in accordance with law. There shall be no order as to costs.