P V VARADARAJA IYER Vs. AMMUKUTTY AMMA

JUDGEMENT

(1.) This is a petition filed under S.151 and 152 of the Civil Procedure Code (for short 'the Code') to amend the decree passed by this Court in AS 311 of 1980 on 28.6.1986. Respondents have opposed the prayer stating that this Court has no power to allow the same since the decree and judgment passed by this Court have merged in the order passed by the Supreme Court dismissing the SLP (Civil) No. 1678 of 1987 filed by the respondents. In this connection, learned counsel has relied upon the following decisions of the Supreme Court to contend for the position that once a SLP is dismissed whether in limine or on merits after hearing the respondents, the decision of the Supreme Court would preclude this Court even from correcting the decree in exercise of the power conferred on it under S.152 of the Code:

(2.) The short question to be considered is whether the dismissal of the SLP filed by the respondents against the decree and judgment of this Court passed in AS 311/80 would preclude this Court from amending the decree passed by this Court in the appeal as prayed for in the petition, if it is otherwise justified.

(3.) The factual background in which the petitioner has filed the petition can be relevantly noted at this stage: The appeal, AS 311 of 1980, arose out of OS 118 of 1975 on the file of the Sub Court, Thrissur filed by the deceased father of the petitioner. The said suit was for recovery of possession of the suit properties with mesne profits from the respondents. The Trial Court decreed the suit for recovery of the plaint schedule properties with mesne profits. The Trial Court also granted to the first defendant value of improvements and a right to set off such amounts against the amount found due to the plaintiff as mesne profits from him. First defendant filed the appeal challenging the decree passed by the Trial Court. In appeal, this Court confirmed the decree for possession of the suit properties with mesne profits at the rate awarded by the Trial Court with the following modification: