JAI NARAIN Vs. CHHEDA LAL

JUDGEMENT

(1.) This is a matter arising out of at judgment of this Court in two connected 2nd appeals which were decided by this Court eight years ago. The matter has been raised by the learned Munsif of Chandausi before whom an application has been made by the judgment debtors for restitution and for damages on the ground that the decree holder committed a fraud on the court in execution proceedings. In considering this application on merits the learned Munsif had to interpret the decree of this Court passed in 1951 but found that he could not do so because of a clerical error which appeared to him to have crept into the judgment of this Court. He passed an order directing that the file of the matter before him including those of the suits which were decided by this Court in second appeals in 1951 should be sent up to this Court to consider whether the alleged clerical error should be rectified.

(2.) At the outset it may be mentioned that the clerical error referred to above relates to the description of a portion of the property which was in dispute in second appeals decided on 1-5-1951. In his judgment, Sapru, J. observed. "This being so, the position is that the portion A M N B on the map will also be exempt from the operation of the decree awarded by the lower appellate court," It is common ground between the parties that there is no portion which can possibly be enclosed by the letters A M N B on the map. According to Mr. H. N. Seth, learned counsel for the party which was the judgment debtor appellant in second appeals, the letter 'B' should be replaced by 'D' so that the observation of the learned Judge will run thus : "This being so, the position is that the portion A M N D on the map will also be exempt from the operation of the decree awarded by the lower appellate court." I have to decide whether any correction should be made, and if so, whether it should be in accordance with Mr. Seth's suggestion.

(3.) Mr. K. C. Saxena, who opposed this application on behalf of the decree holder with great tenacity, urged three points against making any correction. First, he contended that the decree in the suit having been completely satisfied, this Court is functus officio and has no jurisdiction even to correct any errors under Section 152 C. P. C. He relied on a decision of a Division Bench of this Court in Pitam Lal v. Balwant Singh, AIR 1925 All 556 in which one of the learned Judges observed that when a decree for money has been finally satisfied and discharged, the court is functus officio and can no longer entertain an application for amendment under Section 152 C. P C. He also cited a judgment of the Madras High Court in Munuswami Pillai v. Mahdi Hussain, AIR 1926 Mad 516 in which an observation was made to the effect that it is questionable whether a court would be justified in making a correction which involved the payment of a larger sum of money by one party to another long after satisfaction had been recorded and when nothing remained to be done and the decree had become dead. In a subsequent decision of this Court in Beche Lal v. Hem Singh, AIR 1953 All 485 a learned single Judge disagreed with the observation of Daniels j. in the Division Bench, case mentioned above. There is no doubt that this observation did not have concurrence of the other learned Judge for, Daniels J. observed, "I concur. I would be prepared to go a step further and hold that when a decree for money has been finally satisfied and discharged, the court is functus officio . . ." Thus, according to the learned Judge himself, he was going a little further than his learned colleague on the Bench.