TADEPALLI PITCHAYYA Vs. TADEPALLI SUBBA RAO

JUDGEMENT

(1.) These are appeals by the sons of the deceased 1st plaintiff in Original Suit No. 21 of 1907 in the Subordinate Court of Masulipatam, against the order passed in Execution Petition No. 17 of 1914 and in Miscellaneous Petitions Nos. 212 to 214 of 1914.

(2.) The facts are somewhat complicated, but we will endeavour to state them as shortly as possible. One Tadepalli Garudachalam and his minor sons, the present appellants, brought a suit, Original Suit No. 10 of 1899, in the Masulipatam Sub- Court for partition. The parties to the suit referred the matters in dispute to arbitrators and presented a petition, Exhibit Gr, to the Court under Section 506, Civil Procedure Code, on 11th April 1900. The only fact, which it is necessary to state in regard to this reference to arbitration, is that it provided that the costs- presumably the Court costs-of the plaintiffs and the defendants should be deducted and paid from the "rasi amount" (joint family funds). On 24th September 1903 an interim decree, embodying the terms of the award of the arbitrators, was passed. It may be mentioned that the interim decree, while it provided "that the plaintiffs were entitled to get for their share Rs. 40,251 odd and one-fifteenth of the property as per Schedule B attached to the decree, subject to the variations that might have to be made in the final decree upon settlement of accounts left for disposal, and that a Commissioner should be appointed to settle the accounts," is silent as to costs. A Commissioner was appointed to take accounts, his remuneration being fixed at Rs. 350, which was apparently paid in the first instance by the plaintiffs. The parties having raised objections to the Commissioner s report, a second reference to arbitrators was made on 14th August 1911. Objections were taken by certain of the defendants to the award, which was, however, accepted by the Court and on 5th August 1912 a final decree was passed. The decree directed inter alia that defendants should pay plaintiffs Nos. 2 to 4 their costs amounting to Rs. 2,087. The costs included Rs. 1,225 stamp for the plaint, Pleader s fee Rs. 240, general stamp Rs. 242-8-0 and Commissioner s fee Rs. 350. No appeal having been preferred against the decree, the plaintiffs put in an Execution Petition No. 17 of 1914 to recover the costs Rs. 2,087, after deducting Rs. 278-4-0 paid by the defendants Nos. 11 and 12, and also for possession of item 6 decreed to them. On 1st July 1914, the 2nd defendant and defendants Nos. 14 to ] 6 presented petitions, Miscellaneous Petitions Nos. 212 to 214 of 19i4, under Sections 151, 152 and 153, Civil Procedure Code, and Order XX, Rule 6, Civil Procedure Code, asking that the relief embodied in the decree as regards costs payable to the plaintiff should be expunged, as it was not found in the award submitted by the arbitrators. These petitions and Execution Petition No. 17 of 1914 were heard together and the Subordinate Judge, after taking evidence, ordered that the direction in the decree and judgment about the defendants payment of the plaintiff s costs of the suit should be struck out, that the execution application should be disallowed in respect of its prayerfor recovery of costs and that it might be renewed as regards the prayer for delivery of item 6. After a careful consideration of the evidence, the Subordinate Judge found that the whole of the plaintiff s costs in the suit were fully paid to him by two payments of Rs. 1,000 and Rs. 2,000 and odd made to him before the passing of the interim decree, and that the only item of costs subsequently incurred, namely the Commissioner s fee, had been paid out of the joint funds of the family of the parties.

(3.) Mr. Ramadoss for the appellants did not attack this finding, or attempt to show that it was wrong, and we must, therefore, accept it. The argument advanced for the appellants was that the Subordinate Judge had no jurisdiction to expunge the provision as to costs from the judgment and decree. We think that the contention is correct. Order XX, Rule 6, Civil Procedure Code, which declares what a decree should contain and that it should agree with the judgment, has clearly no application. Nor are the respondents entitled to invoke the aid of Sections 152 and 153, Civil Procedure Code. Section 152, Civil Procedure Code, gives a Court the power to amend judgments, decrees or orders, where there has been a clerical or arithmetical mistake, or an error arising from an accidental slip or omission. In the present case the decree is not at variance with the judgment, and the Court has no power to vary or amend a decree when it is in conformity with the judgment, not even if the judgment is erroneous in law and even if the error be apparent on the face of the judgment. See Parameshraya v. Sesliagiriappa 22 M. 364 and Lakho Bibi v. Salamat Ali 20 A. 337 : A.W.N. (1898) 59. Section 153, which confers a general power on the Court to amend defects and errors in any proceeding in a suit and make all necessary amendments for the purpose of determining the real question at issue between the parties, has obviously no application.