SHANTHAPPA ALIAS THATAPPA Vs. BUDDAMMA ALIAS LAKSHMAMMA

JUDGEMENT

(1.) THE short question that falls for consideration is whether an application for amendment of the judgment and decree passed in favour of the predecessor in interest of the applicant before us can be maintained before the appellate court. The question arises in the following circumstances:- Smt. Buddamma, w/o late Sri changaiah filed a suit for partition against a joint family property, in which her husband held an interest claiming 1/4th share for herself. The suit was decreed by the ix additional city civil judge, Bangalore, against which one of the defendants preferred rfa No. 156/1989 before this court. The said appeal was dismissed by a reasoned order dated 17th of July 1989 passed by a division bench without issuing notice to the respondents, one out of whom had entered appearance on caveat. In the final decree proceedings that followed, the applicant appears to have been substituted in place of the plaintiff-decree holder on the basis of a will set up by him. He has now filed this application with a two fold prayer. The first seeks substitution in place of the plaintiff-deceased respondent no. 1 in the appeal while the second relates to an amendment of the judgment and decree substituting sy. no. 202 in place of sy. no. 212 appearing as item no. 6 of the plaint schedule property. Learned counsel for the applicant argued that the prayer for substitution of the applicant in place of the deceased decree holder was necessary for in the absence of an order to that effect, the revenue authorities to whom the matter may be sent, for effecting division by metes and bounds may not recognise the applicant as the person entitled to claim and be put in possession of the share, which the deceased decree holder was entitled to. He urged that since the trial court had in the final decree proceedings pending before it already substituted the applicant as the successor in interest of the deceased plaintiff, this court may have no difficult in directing a similar substitution in the appeal also. The submission is, in our opinion, wholly misconceived. The question of directing substitution in place of a party to any proceedings remains relevant only till such time the proceedings are not finally disposed of by the court rwith whom the same are pending. Once the proceedings are (disposed of, the court becomes functus officio except for the j purposes of the statutorily recognised remedies of review and/or correction of accidental slips and errors in terms of order 47 and Section 152 of the Code of Civil Procedure. It is not disputed that Smt. Buddamma, the decree holder died somewhere in 1993 i. e. , much after the disposal of the appeal by this court. That event was for purposes of future stages of the proceedings to be taken note of by the court or authority bef. ore whom the controversy or any part thereof may remain pending for adjudication. The applicant's entitlement to claim the fruits of the decree granted in favour of his predecessor in interest would not depend upon whether or not he was substituted in place of the deceased at all stages of the litigation previous to her demise, by the courts that may have dealt with the said stages. Since the applicant has already been substituted in place of the deceased in the final decree proceedings, it is even otherwise unnecessary to order any substitution afresh. The prayer , for substitution is accordingly rejected. That leaves us with the second prayer made in the application for amendment of the judgment and decree passed in favour of the plaintiff-decree holder. Even here, the applicant has considerable difficulty to face. We say so because the power of the court to correct clerical or arithmetical mistakes in judgments, decrees or orders passed by it or errors arising therein from any accidental slip or omission reserved under Section 152 of the Code of Civil Procedure is subject to what is provided for in Section 153a of the code introduced by the Code of Civil Procedure Amendment Act of 1976. The said provision was incorporated to resolve a cleavage in the judicial pronouncements of various high-courts in country. The high courts of Patna and Bombay had taken the view that the power to amend a decree or judgment could in cases where the appeals against the same were dismissed under order 41 Rule 11 of the Code of Civil Procedure be exercised by the trial court or the first appellate court alone. A contrary view expressed by the high courts of andhra pradesh, madhya pradesh, allahabad, Madras and Calcutta according to which regardless whether the dismissal of the appeal was under order 41 Rule 11 or under order 41 Rule 32, the power to amend could be exercised only by the appellate court concerned on the principle that the decree passed by the trial court merged in that passed by the appellate court and what was executable or alterable by amendment was only the final decree passed by the last court in appeal. Section 153 a introduced by way of amendment of the code is therefore aimed at setting at rest this controversy. It provides that 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 had the effect of confirming the decree or order passed by the court of first instance. The crucial question therefore is whether the dismissal of the appeal by this court was a dismissal under order 41 Rule 11, in which case the trial court would be competent to exercile the power of amendment under Section 153a. Order 41 Rule 11 empowers the appellate court to dismiss an appeal in what is often described as dismissal in limine after sending for the record if it thinks fit so to do and after hearing the appellant or his pleader. Such dismissal can be ordered without sending notice to the court from whose decree the appeal has preferred and without sending notice to the respondents or his pleader. Sub-rule (2) of Rule 11 with which we are not for the present concerned empowers the appellate court to dismiss an appeal for default of appearance of the appellants on the date the same is called on for hearing. It was contended on behalf of the applicant that a dismissal as envisaged by order 41 Rule 11 (1) must not touch the merits of the case, for once the appellate court examines the merits of the controversy and deals with the issues that arise for consideration, the dismissal could not be said to be one in limine as envisaged by Rule 11 or order 41. Since the order of dismissal in the case at hand was a reasoned order it could not, according to the learned counsel, be treated as one passed under order 41 Rule 11 (1) of the Code of Civil Procedure no matter the court had not issued notice either to the court, from whose judgment the appeal arose or the respondents. We find it difficult to subscribe to that view. Order 41 Rule 11 (1) does not necessarily envisage a non speaking order of dismissal only. Indeed dismissals in limine and by' non-speaking orders were not viewed favourably by the Supreme Court especially, where debatable issues arose for consideration'. The decision of the Supreme Court in Mahadev Tukaram Vetale And Others VS. Smt. Sugandha and Another Clearly declared that in cases where an appeal raised triable issues, the same ought riot to be dismissed summarily. That was a case where the high court had dismissed the appeal with one word without dealing with the contentions or disclosing the reasons for their rejection. In Shankar Gopinath Apte VS. Gangabai Harihar Rao Patwardhan, their lordships were also dealing with a case, where the dismissal of the appeal was unsupported by any reason. The court frowned upon dismissals by non-speaking orders and observed:-