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"Heard. Allowed deposit 73,240/-."

6. Apart from the fact that the order is cryptic and does not give any reason and has been passed without notice to the defendant, the order in my opinion amounts to a variation of the decree. The decree in the instant case directs the plaintiff to deposit the balance sale consideration of Rs.1,15,000/-. The order in E.A.No.64 of 2013 thus amounts to a variation of the decree by the execution court. An amendment of the decree can be permitted only by the court which passed the decree and not by the execution court. Such an amendment can be permitted only after notice to the defendant. A similar issue arose for consideration before a Division Bench of the High Court of Calcutta in Sunity Chandra Bose v. Nil Ratan Sinha (AIR 1985 Calcutta 282). In the plaint in that case there was a prayer for deduction of arrears of tax due to the Corporation of Calcutta, arrears of rent payable to the landlord and other dues to make the property free from all encumbrances, damages and costs. In the conditional decree which was passed, deduction was allowed in respect of the arrears of taxes due to the Corporation of Calcutta and arrears of rent, from the balance purchase money. Though there was no direction in the conditional decree for deduction of the costs of the suit from the balance sale consideration, the plaintiff first tried to have the costs of the suit deducted from the balance of the consideration by filing a petition. While that petition, which was filed on 27.6.1978, was pending awaiting return of the notice issued to the defendant, he filed another petition on 16.8.1978 for having the costs of the suit deducted from the balance of purchase money and it was allowed on the very same day without hearing the defendant. The Division Bench of the Calcutta High Court held that deposit of the sum of Rs.25,901.57 towards balance sale consideration after deducting the costs of the suit amounts to modification of the decree and that the order passed by the court on 16.8.1978 allowing the plaintiff to deposit the balance sale consideration after deducting the costs of the suit, cannot be justified as the plaintiff has asked the court to make a different judgment regarding the balance of purchase money to be deposited by him. The Calcutta High Court also held that as the decree was a conditional decree it should not have been amended without notice to the defendant. The Division Bench also held that the costs of the suit could have been recovered by filing an execution petition under Order XXI Rule 32 of the Code of Civil Procedure and that by not depositing the amount representing the costs of the suit, the plaintiff has obtained an unfair advantage over the defendant.