MOHAMMED IBRAHIM FEROZI Vs. SHAFQAN

JUDGEMENT

(1.) THIS regular second appeal filed by Mohammad Ibrahim Ferozi defendant is directed against the judgment and decree of learned Additional Senior Subordinate judge, Delhi, whereby he dismissed the appeal of the appellant against the decision of the trial Court.

(2.) THE brief facts of the case are that the plaintiff-respondents 1 to 4 brought a suit for administration of the property left by one Abdul Majid Ferozi against the appellant and other respondents. The suit was decreed on 23rd December 1959 by shri Mahesh Chander, Subordinate Judge, Delhi, who held that Adbul Majid was owner to the extent of one-half share in property Nos. 7693, 7700 and 7701, and to the extent of one-fourth share in a vacant plot of land shown in plan Exhibit P 6. Preliminary decree for administration of the above mentioned properties and for rendition of accounts was accordingly awarded in favour of the plaintiff-respondents against the defendants. By inadvertence the shares, mentioned above in the different properties, were not mentiond in the decree-sheet and it showed as if it related to the entire properties mentioned above. This mistake was, however, not noticed by any of the parties. The appellant filed an appeal against the original decree but the same was dismissed on 21st February 1961 on the ground that it was time barred. On 24th January 1964 the appellant made an application under Sections 151 and 152 of the Code of Civil Procedure for amendment of the decree on the ground that on account of accidental slip the same was not in accordance with the judgment and should have been for administration of the shares of the above-mentioned properties. The application was accepted and the decree-sheet was amended on 12th March 1964. A fresh appeal was thereafter, filed on 27th March 1964 against the amended decree. The learned Additional Senior Subordinate Judge dismissed the appeal on ground that the amendment of the decree did not alter the judgment and made no alternation on the merits. It was made with a view to remove accidental slip and did not change the complexion of the decree so as to give a fresh right of appeal to the appellant. The appeal was accordingly, dismissed.

(3.) MR. Sultan Yar Khan on behalf of the appellant has argued as the original decree was amended on 12th March 1964, the appellant, in spite of the dismissal of his earlier appeal, was entitled to maintain his subsequent appeal in the lower appellate Court. As against that, Mr. Kapur on behalf of the plaintiff-respondents has argued that the appellant in his subsequent appeal cannot agitate matters which were covered by the original decree and did not come into existence as a result of amendment. It is also urged that the appeal in the Court of the learned senior Subordinate Judge was barred by limitation and there was no sufficient ground for condoning the delay.