Patna High Court
Hariher Prasad Narain Deo vs Maheshwari Prasad Narain Deo on 28 March, 1924
Equivalent citations: 82IND. CAS.813, AIR 1925 PATNA 47
JUDGMENT Ross, J.
1. This is a suit by a younger brother against his elder brother for partition. The defence was that the property was an impartible raj. An issue was raised as to the sufficiency of the Court-fee. The Subordinate Judge before whom this suit originally came decided this issue in favour of the plaintiff holding that the suit, was one for partition only. No appeal was made against this order. In the meantime the elder brother died and his sons were substituted in his place as his representatives. The plaintiff, moreover, sold a portion of the property to other persons who were added as plaintiffs. The suit then came before another Subordinate Judge who took up the question as to the sufficiency of the Court-fee again and decided that the plaintiff was bound to pay an ad valorem Court-fee. It, is contended on behalf of the plaintiff in the present application that the. Court had no power to pass this order. The learned Subordinate Judge has referred to the decision in Chandramani Koer v. Basdeo Narain Singh 49 Ind. Cas. 412 : 4 P.L.J. 51. That was a case where there was an application for review and it is conceded by the learned Counsel on behalf of the petitioner that there is power to review an order of this kind on an application properly made; but in the present case there was no application for review. The learned Counsel for the opposite party relies on Section 151 of the Civil Procedure Code. It is true that a reference to that section was made in the decision referred to above although the reference was unnecessary as there had been an application for review of judgment. Order XX, r. Slays down, that the judgment shall be dated and signed by the Judge in open Court at the time of pronouncing it and, when once signed, shall not, afterwards be altered or added to save as provided by Section 152 or on review; and "judgment" is defined in Section 2 of the Code to mean the statement given by the Judge of the grounds of a decree or order. Clearly, therefore, this judgment, for it is a judgment, could not be altered save as provided by Section 152 or on review. It is clear that Section 151 cannot confer jurisdiction on the Court to do what is prohibited by positive law. Section 152 refers merely to clerical or arithmetical errors and it is of no assistance in the present case. In my opinion, therefore, the learned Subordinate Judge had no jurisdiction to alter the order of his predecessor in the way he has done.
2. It was further argued, however, on behalf of the opposite party that inasmuch as there are now added plaintiffs who have taken a transfer of part of the property, the nature of the suit has been altered and the Court is entitled to consider whether the purchasers plaintiffs are in possession, and if they are not, to demand an ad valorem Court-fee. In my opinion the devolution of interest pending the suit can make no difference in the Court-fee to be paid. These plaintiff come in the interest of their vendor, the original plaintiff, and their position is identical with his.
3. I would, therefore, allow this application and set aside the order of the Subordinate Judge. The petitioner is entitled to his costs. Hearing fee five gold mohurs.
Das, J.
4. I agree.