ABBAS KHAN Vs. NIBARANI DASSI

JUDGEMENT

(1.) We are invited in this Rule to set aside an order of the Court of first instance for amendment of the decree in a mortgage suit, made on the 19 January 1906. That decree was confirmed on appeal, to the Subordinate Judge on the 9 May 1907. A second appeal was then preferred to this Court, but was dismissed on the 26 November 1907 under Section 551 of the Code of 1882. In the decree of the Munsif, which was thus ultimately affirmed, the property directed to. be sold was described as the dwelling house of the defendants excepting 10 cottahs of pirotter land. When the decree-holder applied for execution, the judgment-debtors objected that the decree was not in accordance with, the judgment and, ought not to be executed. The decree-holder thereupon applied to the Subordinate Judge on the 21 March 1908 for amendment of the decree. The Subordinate Judge, however, thought that he had no jurisdiction in the matter, and, directed the decree- holder to apply to the Court of first instance. When the matter came to be placed, before that Court, the defendants objected that the only Court which had jurisdiction to deal with the question was the High Court. The Munsif, however, overruled this objection on the ground that under Section 152 of the Code of 1908 he had jurisdiction at any time to correct the decree. He then considered the matter on the merits and directed the decree to be amended. The effect of the amendment was to describe the property to be sold as the dwelling house of the defendants beyond, the private lane which joins "Dey Lane" with the Grand Trunk Road.

(2.) The validity of the order of the Munsif has been questioned before us by the learned. Vakil for the defendant on two grounds; namely first, that the Munsif had no jurisdiction to deal with the matter; and secondly, that on the merits, the order cannot be supported. In our opinion it is not necessary to deal with the second point, in as much as the Rule must be made absolute on the first ground.

(3.) Section 152 of the Civil Procedure Code of 1908 provides that clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties." But though it is open to the Court under this section to amend a judgment, decree or order at any time, it is manifest that the judgment, decree or order, when it is amended, must be in full operation, and has not became merged in or cancelled by the decree of a superior Court of Appeal. Now it is well-settled that when an appeal has been preferred from a decree of a Court of first instance and the decree of that Court has been affirmed, reversed or varied by the appellate Court, the first decree is superseded by the decree of the appellate Court, and the only decree which is capable of amendment is the appellate decree: Mohammad Sulaiman Khan V/s. Muhammad Yar Khan 11 A. 267 (F.B.); Aghora Kumar Ganguli V/s. Mahomed Musa 11 C.L.J. 155 : 2 Ind. Cas. 662. It is clear, therefore, that the Munsif had no jurisdiction in the matter. The question now, arises whether the Subordinate Judge had jurisdiction to make the amendment. As already stated, an appeal against the decree of the Subordinate Judge was preferred to this Court and it was dismissed under Section 551 of the Code of 1882. Consequently upon the authority of the decision of this Court in Uma Sundari Devi V/s. Bindu Bashini Chowdhrani 24 C. 759 which accords with the cases of Munisami Naidu V/s. Munisami Reddi 22 M. 293, and Asm Bibi v. Ahmad Hussain 30 A. 290 : A.W.N. (1908) 109 : 5 A.L.J. 584, it is this Court which has jurisdiction to make the amendment. A contrary view, no doubt, was taken by the High Court of Bombay in Bapu V/s. Vajir 21 B. 548, but that decision has never been followed in this Court.