HEMANTA KUMAR GHOSE Vs. RAJENDRA MONDAL

JUDGEMENT

(1.) This Rule raises a question of procedure. The facts which give rise to this Rule and do not admit of any dispute are these: The petitioners instituted a suit in the Court of the Subordinate Judge of Khulna against the opposite parties and other persons for establishment of their title and recovery of possession of a large quantity of land in the year 1920. The contesting defendants divided themselves into ten groups and ten sets of appearances were entered in the trial Court. The Subordinate Judge decreed the suit in full with costs. In the decree that was prepared the costs allowed to the plaintiffs were shown but the costs incurred by the defendants for pleaders fees were not entered therein as required by Order 20, Rule 2, Clause (2), Civil P.C. Against the said decree only 12 of the defendants preferred an appeal to this Court out of whom ultimately 9 appellants succeeded with the result that the suit stood dismissed as against them with costs. On 15 September 1930 the successful appellants who are the opposite parties to this Rule, made an application to the trial Court for amending the decree by inserting pleaders fees therein. No notice of this application was served upon the petitioners or their pleader and an ex parte order was made by the Court on 19 September 1930 allowing the amendment prayed for and directing that 6 sets of pleaders fees amounting to Rs. 1,500 should be paid by the petitioners to the opposite parties. On 16 November 1933 a notice was served upon some of the petitioners calling upon them to show cause why the said decree for costs should not bo executed against them. On 19 December 1933 the petitioners made an application before the Subordinate Judge under Secs.151 and 152 of the Code praying inter alia that the order directing the amendment should be set aside. The Subordinate Judge by his order dated 5 October 1934 held that the amount of pleaders fees entered in the decree was contrary to the rules regarding costs. He however dismissed the petitioners application on the ground that the executing Court had no jurisdiction to go behind the decree and that the proper remedy of the petitioners was by way of appeal or review. The petitioners thereupon obtained the present Rule. Now it has been stated above that the decree was amended by the Subordinate Judge without giving any notice to the petitioners. It is true that under the present Code no notice is necessary but it would be unfair to allow a decree to be amended without an opportunity being given to the party who will be affected by the amendment. In Bibi Tasliman V/s. Harihar Mahto (1905) 32 Cal 253, Maclean, C.J., observed: I think the Court has an inherent power to deal with an application to set aside an order made ex parte and to set it aside upon a proper case being substantiated.

(2.) The Subordinate Judge therefore on his own findings had power to set aside the ex parte order. It is however contended by the advocate for the opposite parties that as this order has now been incorporated in the decree, the only remedy open to the petitioners was to appeal against that decree. The obvious answer to this contention is that where the Court can amend the decree, the proper course is to apply for amendment and not to appeal. Omission to appeal does not bar an application for amendment: see Mirza Akbar Ali V/s. Mukhdoom Buksh (1875) 25 WR 63 at p. 64 and Sara Bi V/s. Hamid Cassim, 1927 Rang 57. Now the only cases in which the decree can be amended by the Court which passed it are as follows: (1) Where there has been a clerical or arithmetical mistake or an error arising from an accidental slip or omission ( Section 152, Civil P.. C); (2) where the Court itself finds its decree as drawn up does not correctly state what was the Court actually decided and intended to decide, provided the amendment can be made without injustice or in terms which preclude injustice: see the observations of Romer, J., in Ainsworth V/s. Wilding (1896) 1 Ch D 673, of Cotton, L.J., Lindley, L.J. and Bowen, L.J., in In re Swire (1885) 30 Ch D 239 quoted with approval in Soma Sundaram V/s. Subramaniam, 1926 PC 136 and Midnapore Zamindari Co., Ltd. V/s. Abdul Jalil Mia, 1933 Cal 627. It is true that an executing Court cannot go behind the decree, but where the executing Court and the Court which passed the decree are one and the same, the Court can amend the decree in the course of the execution: see the observations of Mitter, J., in Midnapore Zamindari Co., Ltd. V/s. Abdul Jalil Mia, 1933 Cal 627 referred to above. But where the decree of the first Court is confirmed or reversed, it is superseded by the decree of the appellate Court and the only Court that can amend the decree thereafter is the appellate Court: see Lal Brij Narain V/s. Tejbal Bikram Bahadur (1909) 32 All 295. Now the order of this Court in the appeal preferred by the opposite parties was that they were to get their costs from the petitioners. Where the judgment awards costs to a party it implies costs allowed by the rules. If the decree includes costs which are not permissible under the rules, the decree is not in accordance with the judgment and does not correctly state what the Court intended. It is therefore the duty of the Court to correct it so as to make it in conformity with the judgment. The advocate for the opposite parties did not dispute the contention of the petitioners that the pleaders fees included in the decree by the amendment were not in accordance with the rules. It is therefore clear that the amended decree does not correctly state what the Court actually decided or intended.

(3.) For the reasons stated I make the rule absolute, set aside the order of the Judges dated 19 September 1930 and 5 October 1934. I also set aside that portion of the decree in question which embodies the order of the Subordinate Judge dated 19 September 1930 and which has been put into execution by the opposite parties. This will no however preclude the opposite parties from taking such steps according to law as are open to them for getting the decree amended in accordance with the judgment. The petitioners are entitled to get their costs from the opposite parties; hearing fee is assessed at five gold mohurs. Henderson, J.