MINNI ZULEKA BI Vs. KULSUM BI

JUDGEMENT

(1.) This revision petition raises the question whether when an appeal has abated so far one of the respondents is concerned but has been decided on the merits so far as the other respondents are concerned, a subsequent application for an amendment of the decree under Section 152, Civil Procedure Code, at the instance of the legal representatives of the deceased respondent should be made in the trial Court or in the appellate Court. The question is apparently not covered by authority and is not without difficulty. Unfortunately, very few of the relevant documents are before the Court and there is a certain obscurity regarding the facts.

(2.) So far as I have been able to gather them, the admitted facts are as follows : The suit was originally filed by one plaintiff alone for partition of his share in properties owned in common by members of a Muhammadan family. This plaintiff was entitled to a 7/24 share. By a clerical error the plaint was so drafted as to make it appear that instead of claiming 7/24 of the whole of the properties, he was claiming only 7/24 of 7/24 of the family properties. This error was not noticed till after the preliminary decree had been passed and an appeal had been filed by certain of the defendants. There was a large array of respondents, but the principal respondent was the original plaintiff. He died during the pendency of the appeal and no legal representative having been brought on record within the time allowed, the appellate Court ordered that the appeal so far as he was concerned, abated. Apparently, the appellant made out no case against the other respondents, and the appeal as against them was dismissed with costs. There was no order as to costs in respect of the deceased respondent. After this decision the present petitioners, legal representatives of the deceased first plaintiff were impleaded in the final decree proceedings as the second and third plaintiffs and it was at this stage that the error in the plaint which had been incorporated in the preliminary decree was discovered and an application was filed before the District Munsiff to rectify this error both in the plaint and in the preliminary decree. It was rejected by the. District Munsiff on the ground that he had no jurisdiction to modify the decree of the appellate Court. This is the order against which the present revision petition has been filed, but the judgment contains no reference to the fact that the appeal, so far as it related to the first plaintiff under whom the petitioners claim, had abated before the dismissal of the appeal as against the other respondents. A review application was filed calling the attention of the District Munsif to this abatement. The District Munsif declined to modify the previous order and there is no petition to revise the review order.

(3.) The contention of the petitioners is that when an appeal abates, the position of the deceased respondent is just the same as it would have been had no appeal been filed and his legal representatives are entitled to treat, as the only decree affecting them, the decree of the trial Court. Therefore, it is contended, if a clerical error is discovered in this decree, they must look to the trial Court to amend that decree and they have no locus standi to approach the appellate Court for the same relief. This being a matter of first impression and one which is not free from difficulty, it is, in my opinion, necessary to dispose of it with reference to the special facts of the case and it is not desirable to attempt to adjudicate on the hypothetical case in which an amendment is sought of a decree in a case when the appeal has abated as against the sole respondent. In many respects, the abatement of an appeal has the same effect as the dismissal of an appeal. Under Order 22, Rule 9, Civil Procedure Code, the abatement of a suit or appeal prevents the filing of a fresh suit or appeal raising the same contentions and it is established that when an appeal has abated, limitation runs from the date of the order of abatement and not from the date of the preliminary decree. It is obviously necessary that one Court or other should have the power to rectify clerical errors affecting the process of execution in which the legal representatives of the deceased respondent are interested. There is a decision of a Bench of the Allahabad High Court reported in Deoki V/s. Jwala Prasad (1928) I.L.R. 50 All. 608 to the effect that when the appellate Court merely allows an appeal to be withdrawn, this order has not the effect of a decree superseding the trial Court's decree and any amendment is to be carried out by the trial Court. It is of course arguable that when an appellant allows the appeal against the deceased respondent to abate, the effect is very much the same as if the appeal had been withdrawn as against that deceased respondent. But even assuming this to be so if the appeal is withdrawn as against one respondent but prosecuted as against other respondents until it results in a decree on the merits in the appellate Court, in such circumstances should the respondent in respect of whom the appeal has been withdrawn be required to go to the trial Court for his amendment or to the appellate Court. My attention has been drawn to two decisions of the Madras High Court which have some slight bearing on the question before me. One is the decision of a single Judge reported in Muthu Bhattar V/s. Mrithunjaya Bhattar (1917) 7 L.W. 8. The actual decision was to the effect that when there is a second appeal pending, it is the lower appellate Court1 which has jurisdiction to amend the decree. The correctness of that proposition is not disputed, but it is contended that a consequential order of the learned Judge on a Civil Miscellaneous Petition, filed contemporaneously with the Civil Revision. Petition against the District Judge's refusal to amend by implication recognises the power of the High Court to carry out an amendment in the case of an appeal which has been withdrawn. It does appear that the second appeal in that case-was eventually withdrawn; but it does not appear that the second appeal had been withdrawn at the time when this Civil Miscellaneous Petition was filed. If as seems likely, the second appeal was still pending, the order on the Civil Miscellaneous Petition, consequential upon the order in the Civil Revision Petition, that the amendment was to be carried out by the District Judge, would have no more effect than to implement the decision that the pendency of an appeal did not affect the power of the lower Court to amend. The other case is one reported in Pankajammal V/s. Seshadri Aiyangar (1912) 16 I.C. 933. That was a revision against an order of amendment carried out by the lower appellate Court when there had been a second appeal which had been dismissed. One of the learned Judges held that the lower appellate Court had the power of amendment because the second appeal had been dismissed merely on the ground that no appeal lay and therefore there was no decree of the second appellate Court confirming the decree of the lower appellate Court. The other learned Judge does not appear to have adopted this view, for he agrees with the decision on another ground and refrains from commenting on the theory that the dismissal of a second appeal on the ground that no appeal lies is not tantamount to a decree. There is also a decision of a Bench of the Allahabad High Court reported in Pitam Lal V/s. Balwant Singh (1912) 16 I.C. 933, in which it was held that when an appeal was dismissed for default, there is, properly speaking, no superseding decree of the appellate Court and an amendment application lies to the lower Court. This is decision, like that in Deoki V/s. Jwala Prasad (1928) I.L.R. 50 All. 608, already referred to, does not deal with the difficult question which arises when the appellate Court actually gives a decision on the merits so far as some of the parties are concerned though the appeal fails for want of prosecution or some-similar cause as regards another party.