THOMAS Vs. KUNJAMMA

JUDGEMENT

(1.) This revision is filed by the plaintiff in O.S.No. 369 of 1976 on the file of the Munsiff's Court, Muvattupuzha. The suit was for injunction and it was tried along with O.S.No. 438 of 1976. The trial court decreed O.S.No. 369 of 1976 and dismissed O.S.No. 438 of 1976. The common judgment was confirmed in appeals and second appeals. Common judgment of the High Court was in SA.Nos. 482 and 486 of 1982. Subsequently, the plaintiff filed an application for amendment of the plaint as well as of the decree to correct the extent of the plaint schedule property as 77.79 cents instead of 75 cents and also the survey number as Sy.No. 734/2B instead of 734/2AB. The trial court dismissed the application holding that that court has no jurisdiction in view of the Full Bench decision in Kannan v. Narayani (1980 KLT 9 (FB). The plaintiff filed this revision before this Court challenging the order of the trial court. When the matter came before the learned single Judge reliance was placed on the decision of another learned single Judge in Vasudevan v. Lakshmi (2000 (3) KLT 704) holding that the trial court has jurisdiction to allow such amendments. The learned single Judge in Vasudevan's case (2000 (3) KLT 704) had relied on the decision of the Supreme Court in Tiko and Ors. v. Lachman (1995 Suppl. (4) SCC 582). The learned single Judge also noticed a decision of a Division Bench in Kattamkandi Puthiya Maliackal Saheeda v. P.V. Hemalatha (2002 (3) KLT 301 : 2002 (2) KLJ 306) holding that there is merger of the trial court decree with the decision of the appellate court and hence the appellate court alone has jurisdiction to amend the decree. The learned single Judge referred the case to the Division Bench after expressing an opinion that the decision in Vasudevan's case (2000(3) KLT 704) required reconsideration. When the case reached the Division Bench, their Lordships have referred the case to the Full Bench for an authoritative pronouncement on the issue raised in the revision. It is thus that the revision is placed before us.

(2.) Any clerical or arithmetical mistake in a decree has to be corrected by the court which passed the decree. When the decree of the trial court is taken up in appeal and has merged in the appellate decree, the appellate decree alone subsists for all purposes. Therefore any correction of the decree has to be made by the appellate court only. That is the law laid down by the Full Bench of this Court in Kannan's case (1980 KLT 9 (FB). However, in Vasudevan's case (2000 (3) KLT 704) the learned single Judge relied on the decision of the Supreme Court in Tiko's case (1995 Suppl.(4) SCC 582). The question for consideration is whether the decision of the Supreme Court in Tiko's case (1995 Suppl. 4 SCC 582) has laid down any law contrary to the decision of the Full Bench of this Court. The question whether an application for amendment of the decree has to be filed in the trial court where the trial court decree had merged in the appellate court was not the question considered by the Supreme Court. On the other hand, the petition for amendment was filed in the execution court which dismissed the application holding that the execution court cannot go behind the decree. In such circumstances, the Supreme Court directed the application made for amendment of the plaint and decree to be treated as an application made in the original suit proceedings and to be disposed of in accordance with law.

(3.) The learned senior counsel appearing for the revision petitioner contended that in this case the appeal and second appeal from the trial court judgment were only dismissed confirming the decree of the trial court and therefore the trial court had jurisdiction to allow amendment of the plaint as well as of the decree. This contention cannot be accepted in view of the larger Bench decision of the Supreme Court in Collector of Customs v. East India Commercial Company . In that case, the question arose under Article 226 of the Constitution of India. The original authority which passed the order was within the jurisdiction of the High Court. But the appellate authority was outside the jurisdiction of the High Court. Though the appellate authority had only confirmed the finding of the original authority it was pointed out that the order of the original authority had merged with that of the appellate authority and therefore the High Court had no power to interfere even with the order of the original authority. This contention was accepted by the Supreme Court on the principle of merger. Whether the appellate authority's order was one of reversal or modification was immaterial while considering the question of merger. Again in Kunhayammed v. State of Kerala , a three member Bench of the Supreme Court held as follows: