Madras High Court
N.M. Muthu Gounder (Died) And Ors. vs Kalianna Gounder And Ors. on 30 August, 1996
Equivalent citations: (1996)2MLJ615
JUDGMENT S.S. Subramani, J.
1. The 1st defendant in O.S. No. 11 of 1994 and O.S. No. 131 of 1983 is the appellant in this case. He is the 2nd respondent in I.A. No. 284 of 1982 in O.S. No. 118 of 1956 on the file of Subordinate Judge, Gobichettipalayam. The material facts are as necessary for the proper disposal of the revision and appeals are as follows:
One Marappa Gounder owned many properties and he died leaving behind four sons namely Muthu Gounder, Kaliyanna Gounder, Chenniappa Gounder and Perumal Gounder alias M.P. Swamy. They could not adjust themselves and Chenniappa Gounder filed O.S. No. 118 of 1956 on the file of Subordinate Judge, Erode. A preliminary decree for partition was passed whereby Chenniappa Gounder was allotted 1/4th share. He filed an application for passing of a Final decree in the case. The commission was issued to file a report and plan. Certain suggestions were made regarding allotment. It is seen that there was no definite finding regarding allotment of plaint schedule property in the suit, even though a suggestion was made by the Commissioner regarding allotment. The final decree was passed accepting the report and the plan. There is an appeal before this Court. A.S. No. 117 of 1971 was the appeal filed by the appellant herein challenging the final decree. Two other appeals arc A.S. Nos. 40 and 607 of 1970 was also filed by some of the parties. All these appeals are heard together and disposed of. Ex.A-4 is the certified copy of the final judgment passed by this Court.
2. It is the case of the plaintiff in the respective suits which is the subject matter of the appeal herein that pursuant to their final decree, they have taken possession of the land allotted to them which includes the plaint schedule property also. The appellant herein is interfering with their possession and therefore they prayed for a declaration granted in their favour in respect of plaint properly and for consequential injunction.
3. In these suits, the appellant contended that the plaint property which is the subject matter of the suit was not allotted to the plaintiffs but the same is allotted to him (vide paragraph 7 of the Commissioner's Report in that case was relied on for the said purpose).
4. When this contention was taken, the plaintiff's in the suit filed I.A. No. 384 of 1982 in O.S. No. 118 of 1956 to correct or amend the judgment. An application was filed under Sections 152 and 153 of the Code of Civil Procedure. In that application, they wanted to amend the final judgment by including the plaint properties also towards their share. The amendment application was seriously objected by the appellant herein. One of his contentions was that the trial court has no jurisdiction to amend the judgment when the same has merged in the appellate decree of this Court. The amendment application and two suits filed by the respective brothers were taken up together. The trial court passed a decree in favour of the plaintiffs and the amendment sought for was also allowed. Against the order allowing the amendment, C.R.P. No. 2111 of 1985 is filed by the 1st defendant in the suit. He filed appeals before the lower appellate court against the judgment in A.S. Nos. 9 and 10 of 1985. The appeals before the lower court was dismissed. The second appeals are filed against the concurrent judgments. The C.R.P. filed against the amendment application was also tagged with the second appeals and were heard together.
5. At the time of admission of the second appeals, the following substantial questions of law have been raised:
(1) Whether the lower appellate court was justified in upholding the title of the respondent, especially when it noticed that the suit property was not specifically allotted to the share of the respondent in the final decree Ex.A-7?
(2) Whether the court below misread Exs.A-3 to A-5 and A-7 for coming to the conclusion that the appellant was not allotted the suit property as and for his share.
(3) Whether the lower appellate court was in error in granting the injunction without giving a specific finding with reference to the possession of the property?
6. Without going to the merits of the ease, I feel that the second appeals have to be allowed for one simple reason. The plaintiff in the respective suits claim title on the basis of the final judgment in O.S. No. 118 of 1956. Admittedly the plaint property has not been allotted to the share to the respondent. They prayed that the property should be allotted to them on the basis of the Commissioner report filed in that case. 7. When the contention was taken by the appellant that the plaint property was not allotted to them in that decree, admitting the same they filed an application in I.A. No. 284 of 1982 to correct the judgment. In the affidavit filed in support of their contention we find that the contention of the appellant is admitted by them. In para 2 of the affidavit they have stated as follows:
The 1st respondent/plaintiff filed the suit and final decree was also passed in accordance with the commissioner's report. The commissioner's report and observation were taken by this Hon'ble Court. This Hon'ble Court has also mentioned in the final decree about the same. The 2nd respondent/1st defendant who filed a second appeal in S.A.No. 111 of 1971 also questioned the same allotment. The Commissioner has stated that I should get plot B in plan No. 12 (S.F.No. 91-D) along with items 36 and 38 and my brother 3rd respondent to get plot A in plan No. 12 (S.F.No. 91-D) along with items 35,37 and 39. This Hon'ble Court has accepted the same and has staled in para 10 about the same. This Hon'ble Court though accepted the Commissioner's report and recommendation has not specifically mentioned in Clauses 4 and 5 of the decree respectively. Hence the 2nd respondent is prolong against his case in S.A.No. 111 of 1971 that the same was not allotted. Hence the final decree passed in I.P.No. 1491 of 1959 has to be amended accordingly. Otherwise, I will be put to irreparable loss and hardship.
(The extract above is reproduced as it is in the affidavit, without making any corrections, either spelling mistake or grammatical mistake.).
8. It is admitted that unless the plaint schedule properties are allotted to them in the judgment they cannot claimed title de hors the judgment. That is why they wanted to include plaint schedule properties also towards their share in the final judgment passed in O.S. No. 118 of 1956. The lower court allowed the correction petition. If the amendment cannot be granted by that court, the title of the plaintiff over the schedule item also cannot be granted. So everything turns on the jurisdiction of the court below in allowing the amendment of the judgment.
9. It is not disputed by the parties that against the final judgment there was an appeal before this Court as A.S. No. 111 of 1971. Ex.A-4 is the judgment. It was disposed of on merits. The prayer to include a property cannot be an accidental slip or omission.
10. Correction of the judgment and decree is provided by Sections 152 and 153 of the Code of Civil Procedure. Section 153-A was incorporated in the C.P.C., by virtue of the amendment in 1976. Section 153-A reads as follows:
Where an appellate court dismisses an appeal under Rule 11 of Order 41, the power of the 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, notwithstanding that the dismissal of the appeal has the effect of confirming the decree or order, as the case may be, passed by the court of first instance.
The question whether a decree or judgment could be corrected by the first court when there has been an appeal and when the appeal has been disposed of on merits came for consideration before the Full Bench of the Kerala High Court and the same is reported in Kannan v. Narayani, 1980 K.L.T. 9 (F.B.). In the case, the Full Bench held:
Except in cases to which Section 153-A of the Code of Civil Procedure 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 under Section 152 of the Code.
In paragraph 4 of the judgment, their Lordships further held that.
We are afraid the question whether the court of first instance could deal with the application under Section 152 of the Code when the decision of that court had merged in that of the higher court was not as such in controversy in Samendra v. Krishnakumar . In that case, in a mortgage suit, a preliminary decree for sale was passed though the suit was for foreclosure and possession. This mistake went unnoticed even in the High Court when it confirmed the decree of the trial court. Subsequently, the final decree was passed not exactly in terms of the preliminary decree, in the sense, what was passed was not a final decree for sale but a final decree for foreclosure and possession. Challenge having been made to this action of the court in passing the final decree in variance with the preliminary decree the Supreme Court referred to the case in Mellor v. Swire, (1885)30 Ch.D. 239. In that case Lord Justice Bowen, L.J., had said: "Every court has inherent power over its own records so long as those records are within its power and that it can set right any mistake on them. An order even when passed and entered may be amended by the court so as carry out its intention and express the meaning of the court when the order was made.
Reference there was evidently to the inherent power of the court to correct the errors in its judgment, a power which has found statutory recognition in Section 152 of the Code. Referring to this Supreme Court said in paragraph 11 of its judgment thus:
Now, it is well settled that there is an inherent power in the court which passed the judgment to correct a clerical mistake or an error arising from an accidental slip or omission and to vary its judgment so as to give effect to its meaning and intention.
The court further said thus:
Under Section 152, clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may be at any time be corrected by the court either on its own motion or on an application by any of the parties. It is thus manifest that errors arising from an accidental slip can be corrected subsequently not only in a decree drawn up by a ministerial officer of the court, but even in a judgment pronounced and signed by the court.
The court further noticed that the Subordinate Judge had, by oversight, passed a preliminary decree for sale in a suit for foreclosure and possession and in the circumstances, the trial court had the power to correct its own error when passing a final decree for foreclosure. Evidently, the question in the form in which it is now before us in this case was not before the Supreme Court and we do not think that the Division Bench could have read that decision in support of the view it has expressed in the case before it. The decision in Janakirama Iyer v. Neelakanta Iyer , also does not appear to support the view expressed by the Division Bench. The question of propriety of the High Court in amending its judgment in appeal by correcting the term 'mesne profits' into 'net profits' to reflect what was really meant by the High Court. While the case was pending before the Supreme Court in further appeal was one of the matters that was considered by the Supreme Court. The question arising whether the correction was one to which Sections 151 and 152 of the Code would apply was urged before the Supreme Court and in that context the Supreme Court said thus:
Thus, there can be no doubt that the decretal order drawn in the High Court through error introduced the words "mesne profits' and such an error could be corrected by the High Court under Sections 151 and 152 of the Code even though the appeals may have been admitted in this Court before the date of correction.
Evidently, the controversy before the Supreme Court did not concern any question of merger of a decree in that of the appellate court and the question of moving the trial court for correction after such merger was not a matter on which the Supreme Court spoke in that case.
11. A similar question came for consideration before the Bombay High Court reported in Sunil v. Shivprasad A.I.R. 1985 Bom. 269 and paragraph 10 of the judgment is as follows:
Several other decisions have been pointed out to me, but the decision which I regard as the one binding upon me is to be found in Hussain Sab's case. It this is so, the trial court in the instant case could not have amended the decree. The view of the revisional court that the mistake which is to be corrected was such a minor one that it could be done by the court of first instance is not correct and is inconistent with the law laid down by this Court. The trial court acted in clear excess of its jurisdiction while it proceeded to amend the decree which had been passed by the appeal court.
In view of the legal position, I hold that the lower court has no jurisdiction to amend the final judgment.
12. Once I hold that the court below has no jurisdiction to amend the judgment, the C.R.P., has only to be allowed. I do so. There will be no order as to costs.
13. Without amending the decree, the plaintiff in the respective suits cannot claim title. A suit is one for declaration of title and for possession with consequential injunction on the basis of the allotment alleged to have been made in the final judgment in the earlier suit. Once it is found that they have not title without the decree being corrected the suit filed by them has only to be dismissed. Consequently, the second appeals are allowed, without any order as to costs.
14. In both the suits, there is only a judgment. No decree has been drafted and no execution has been levied. Without producing the necessary stamp for preparing the decree, I am doubtful whether the plaintiff can claim title on the basis of the judgment alone. At any rate, since I am dismissing the suit, the same is not finally decided.
15. In the result, C.R.P. and second appeals are allowed. There will be no order as to costs.