SACHINDRA NATH KOLYA Vs. PROBODH CHANDRA SARKAR

JUDGEMENT

(1.) This Rule is directed against an order of the learned Subordinate Judge, Second Additional Court of 24-Parganas, dated 4-7-1942 allowing an application for amendment of the judgment and decree made in Title Suit No. 103 of 1927 of that Court. The facts so far as they are material for our present purpose may be shortly stated as follows:

(2.) The opposite party, Probodh Chandra Sen who has since died and is represented by his Wife Sm. Pankajini Dassi, instituted a suit against one Swarnamoyee Dassi, the predecessor- in-interest of the petitioner in the Court of the Additional Subordinate Judge, 24-Parganas for establishment of his title to and recovery of possession of an eight annas share of certain Government Promissory Notes of the face value of Rs. 1,00,100 or in the alternative for value thereof together with interest and for other consequential reliefs. In the plaint, the value of the half share of the Government Promissory Notes claimed by the plaintiff was laid at its then market price at Rs. 35,035. As for interest, a claim was made tentatively for Rs. 850 and court-fees were paid upon the sum and there was a prayer to the effect that if on assessment, more money on account of the Government Promissory Notes was found due, the plaintiff might be given a decree for that amount, on payment of additional court-fees as might be required. The suit was decided in favour of the plaintiff and the decree that was drawn up is as follows: It is ordered and decreed that the suit be decreed with costs. Plaintiff is entitled to half share of the Governmeut Promissory Notes as declared. Plaintiff do recover possession of the same. If the defendant does not deliver them or is unable to deliver them, the plaintiff will be able to realise their market value with interest due thereon at the Government Promissory Note rates from the date of Debrani's death, the amount of interest not exceeding Rs. 850, as the plaintiff has paid court-fees on that amount. Against this decree the defendant took an appeal to this Court and the said appeal was dismissed on 2-3-1982. There was then an application for leave to appeal to His Majesty in Council. This was granted but eventually the defendant did not proceed with the appeal. On 9-6-1941, the plaintiff made an application for amendment of the judgment and decree under Secs.151 and 152, Civil P.C. and the application was filed in the Court of the Subordinate Judge who tried the suit. The allegation of the plaintiff in substance was that owing to an accidental slip or omission a most unfortunate error had crept into the judgment and the decree. The plaintiff or his legal advisor discovered recently that the interest on eight annas share of the Government Promissory Notes, since Debrani's death up to the institution of the suit which was allowed by the Subordinate Judge, would amount to nearly Rs. 72,000. It is true that the claim for interest was allowed tentatively at Rs. 850 upon which court-fees were paid but the plaintiff reserved to himself the right of having & decree for larger amount on payment of additional court-fees. It is said, therefore, that in the interests of justice this mistake might be rectified and the decree amended by giving a decree to the plaintiff of the whole amount due as interest and allowing the plaintiff to recover that amount on payment of additional court-fees. This application was allowed by the Subordinate Judge and it is against this judgment that the present Rule has been obtained.

(3.) Two questions have been raised by the learned advocate appearing for the petitioner. It is argued in the first place that as against the decree of the trial Judge, there was an appeal taken to this Court which affirmed the judgment of the Court below, the latter had no jurisdiction to entertain an appliation for amendment of the decree under Section 152, Civil P.C. The other point taken is that the allegation made by the plaintiff does not make out a proper case for amendment of the decree under Section 152 of the Code and that in the circumstances which have happened in the present case this discretionary remedy should not be given.