UMAPADA PAL Vs. DURGESH NANDINI GHOSH

JUDGEMENT

(1.) The only question involved in the instant revision at application under Sec. 115 Code of Civil Procedure is by which Court the decree is to be amended-whether by the court of the first instance or by the court of appeal. The facts relevant for the purpose of deciding this question are as follows.

(2.) The Plaintiff-opposite party filed a suit (T.S. No. 50 of 1980) for eviction of the Defendant-Petitioner from a shop room on the ground floor of a particular premises. The suit was initially decreed on Sept. 26, 1983 by the trial court and an appeal (T.A214 of 1983) was preferred against the decree. The appellate court sent the case back on remand before the trial court on Dec. 21, 1985. During the pendency of the rehearing of the suit after remand before the trial court, the Plaintiff-opposite party filled an application for bringing certain facts to the notice of the court on March 5, 1987 stating that during the pendency of the suit the Defendant-Petitioner fraudulently converted the shop room into two apartments by erecting a brick wall and praying for keeping the petition on record so that no controversy could arise in future with regard to such change of the suit property. By order dated March 6, 1987, the trial court considered the petition and allowed the same to be kept with the record as prayed for by the Plaintiff. After remand, the suit was again decreed on July 30, 1987. The decree was again appealed against in Title Appeal 157 of 1987 and on a contested hearing, the appeal was dismissed and the decree was upheld by the appellate court on March 20, 1991. The Plaintiff decree holder put the decree into execution in T. Ex. I of 1993. The delivery of possession was directed to be given to the Plaintiff decree holder by the executing court through the nazir with police help and the possession could not be delivered on July 18, 1995 because of the description of the suit property in the decree suggesting that the suit property consisted of one room while two rooms were actually found to be in existence. The' Plaintiff-decree holder then filed an application before the trial court under Sections 151, 152 and Order 6 Rule 17 of Code of Civil Procedure praying for amendment of the plaint and decree so as to include therein the subsequent event which took place by reason of conversion of one room into two. The Defendant judgment debtor opposed the said application on filing a written objection contending, inter alia, that the said application was not maintainable and the proposed amendment could not be allowed. By the impugned order dated March 21, 1998, the trial court negatived the objection that was raised by the defendant -judgment debtor. It took note of the petition that was filed by the decree-holder on March 5, 1987 by which the attention of the court was rartier drawn to the fact that the judgment debtor had since divided the rented room into two by erecting a wall. The trial court also found that everything including the boundary of the schedule of the suit property remained unchanged except that a separate wall was brought into existence inside the room. It was of the view that the said change effected by the judgment debtor was mala fide and that it was a mistake not, only on the part of the decree holder by not taking any steps for correction of the description of the suit property in the plaint schedule but also on the part of the court itself in not incorporating the necessary amendment in the decree which was passed on Aug. 4, 1987. The trial court accordingly allowed the proposed amendment to be made in the decree that was passed by the trial court and gave direction upon the decree holder to file appropriate application for amendment of the decree that was passed by the appellate court since it was of the view that it had no jurisdiction to amend the appellate decree. And hence instant revision at the instance of the defendant judgment debtor.

(3.) Mr. Mukherjee, the learned Advocate appearing for the Petitioner, urged only one point. He submitted that the trial court had no jurisdiction to amend the decree which by reason of its being affirmed on merits by the appellate court became the decree of the appellate court and that it was only the appellate court that could correct or amend the decree under Sec. 152 Code of Civil Procedure. He further submitted that the appeal in the instant case was dismissed on a full-fledged hearing on merits and not In limine and as such Sec. 153A of the Code of Civil Procedure could not be pressed into service for enabling the trial court to amend the decree. In support of this contention, Mr. Mukherjee placed his reliance on the privy Council decision of Lala Brij Narain Vs. Kunwar Tejbal Bikram Bahadur 37 I.A. 70 , a Division Bench decision of our High Court in Chandre Kala Devi Vs. Central Bank of India 62 C.W.N. 381 a Division Bench decision in Ramsunder Singh Vs. Mst. Pana Kuer A.I.R. 1979 Pat. 5 and a Full Bench decision of the Kerala High Court in Kannan Vs. Narayani A.I.R. 1980 Ker 76 .