GOVINDAN NAMBOOTHIRI Vs. EASWARAN NAMBOODIRI

JUDGEMENT

(1.) The short question in this civil revision petition is whether the amendment of the decree allowed by the lower court is right or without jurisdiction.

(2.) The decree sought to be amended was originally passed by the Munsiffs Court; and it was taken up in appeal by the 11th defendant before the Subordinate Judges Court. That Court ultimately confirmed the decree; and it was that decree that was sought to be amended in the Munsiffs Court at the instance of the 11th defendant. Objection was taken by the 13th defendant that that court had no jurisdiction to amend the decree, because it was the appellate decree of the Subordinate Judge that was sought to be amended. The learned Munsiff overruled the objection and allowed the amendment. The Munsif observed that the amendment related to that portion of the decree which was not the subject matter of the appeal before the appellate court and that it was only an arithmetical or clerical error coming within S.152 of the Code of Civil Procedure that was sought to be corrected. Therefore, the Munsif thought, he had jurisdiction to amend the decree. The question for consideration is whether this is correct.

(3.) The Supreme Court has held in Collector of Customs, Calcutta v. East India Commercial Co. Ltd. Calcutta AIR 1963 SC 1124 , that when an appeal was made, the appellate authority could do one of three things, namely, (1) it might reverse the order under appeal; (2) it might modify that order; or (3) it might merely dismiss the appeal and confirm the order without any modification. In all these three cases, the Supreme Court has held, the operative order was the order of the appellate authority, whether it had reversed the original order, modified it or confirmed it. In view of this, I do not think there is any scope for contending that there is a distinction between that portion of the decree which was not appealed against and that portion of the decree which alone was appealed against. In my view, that distinction, even if it existed before, can no more avail after the aforesaid pronouncement of the Supreme Court. I may also, in passing, refer to a decision of this Court by Vaidialingam, J. in P. Kesavan v. Vazhoor Gopalan 1964 (1) KLR 155 , on the matter.