APPUKUTTAN Vs. GOPALA PILLAI AND ANOTHER

JUDGEMENT

(1.) THIS appeal by the defendant arises out of a suit for recovery of the plaint building with arrears of rent at the rate of one rupee per month from October, 1962 on the basis of an oral entrapment of the building by the plaintiff to the defendant. The land along with the plaint building was sold in revenue auction evidenced by Ex. P -4 on 11 -7 -1116 and it was delivered to the auction -purchaser on 11 -10 -1116 evidenced by Ex. P -3. The auction -purchaser sold his rights to Ammukutty Amma in 1122 evidenced by Ex. P -6 and she in turn executed Ex. P -1 sale deed in favor of the plaintiff on 27 -9 -1951. The main contention of the defendant is that the building was constructed by him and it was not sold in revenue auction. This contention was concurrently overruled by the courts below. But they disallowed the claim of the plaintiff for recovery of the building because of the finding that the defendant is a kudikidappukaran. The plaintiff's claim for arrears of rent was decreed. The defendant challenges the correctness of the decrees for rent in the second appeal.

(2.) THE decree and judgment of the lower appellate court are dated 21 -12 -1963 and the time for filing the appeal expired on 29 -3 -1964. The application for copies for judgment and decree of the lower court was made there only on 4 -6 -1964 and the second appeal was filed on 3 -8 -1964. In the memorandum of appeal it is stated that the judgment and decree of the lower appellate court were amended by the order dated 16 -3 -1964 passed in I. A. 241 of 1964 filed in the appeal and the period of limitation for filing the appeal will run only from 16 -3 -1964 as the second appeal is filed against the amended decree and judgment and there is therefore no delay in filing the second appeal. The decretal portion of the judgment of the lower appellate court before it was amended read as follows: -

(3.) ON behalf of the appellant reliance was made to the decisions of the Calcutta High Court in Aditya Kumar v. Abimash Chandra : A I R 1931 Cal. 323 and Soudamini v. Nabalak Mia, A. I. R. 1931 Cal. 878 to support his contention. In Aditya Kumar v. Abimash Chandra2 the decree was modified in review and it was held that the modified decree is the final decree for the purposes of an appeal. It is not a case of amendment of the decree under Section 151 or Section 152 C. P. C. The said decision therefore cannot govern the case before us. The judgment in Aditya Kumar v. Abimash Chandra2 was by Suhrawardy, J. and the same learned Judge sitting with Jack, J. in Soudamini v. Nabalak Mia3 observed thus: