NARAYANDAS JAWAHARMAL Vs. VISHNU GANESH NAMJOSHI

JUDGEMENT

(1.) THIS is an application under Section 152 or the Civil Procedure Code for amendment of the decree in Civil Second Appeal No. 4 of 1957 passed on 23-41959. The correction is sought on the ground of clerical error in the decree of the trial Court which has persisted in the decree in the aforesaid second appeal, in the decree of the trial court the date of the decision of the Rent Controller's court is mentioned to be 22-12-1953 factually it was not 22-12-1953 but it was 22-121952. This was not disputed. However the learned counsel for the opponent Mr. Saxena contends that the correction cannot now be made as the court should be taken to be functus officio by reason of the fact that the decree which is sought to be amended has been fully satisfied. He relies upon the decision, reported in Pitam lal v. Balwant Singh, AIR 1925 All 556 and Munnuswami v. Hussain Khan Sahib, air 1926 Mad 516 in support of his contention.

(2.) MR. Chafekar, who appears for the applicant, however says that although the earlier Allahabad decision in AIR 1925 All 556 has taken that view a different note is sounded in a later decision of the Allahabad High Court in Bechelal v. Hem singh, AIR 1953 All 485. Moreover it is urged that there is nothing to show that the court has become functus officio by reason of the entry on the face of the decree regarding its satisfaction.

(3.) IN AIR 1925 All 556, an application for amendment of a decree was sought. Sulaiman J. , who constituted the Bench, held that the lower court was in error in holding that for the exercise of the powers under Section 152 C. P. C, the court has no option and that in every case it is bound to exercise that power. This view, according to the learned Judge, was not correct and that it was open for him to refuse amendment if the circumstances justified this. Daniels, J. , besides concurring with the above decision of Sulaiman, J. , went a step further and held that when a decree for money had been finally satisfied and discharged the court is functus officio and can no longer entertain an application for amendment of the decree under Section 152 C. P. C. It seems from this decision that that was the view entertained by Daniels J. , alone and was not the opinion of the Division bench. In the later Allahabad case reported in AIR 1953 All 485, this view expressed by Daniels J. in AIR 1925 All 556, is not followed. The learned Judge agarwala J. , who delivered the judgment, relied upon the decision of the Privy council reported in Piraratna Unnanse v. Wahareke Sonut-tara Unnanse, 1950 All lj 587 (PC ). That was a case from Ceylon and the provisions of Order 28 Rule. 11 of the English Rules of the Supreme Court were under consideration. That Rule is identical with Section 152 of the Civil Procedure Code. Sir John Beaumont delivering the judgment of the Board in that case stated the law on the subject in the following words: