AGHORA KUMAR GANGULI Vs. MAHOMED MUSA

JUDGEMENT

(1.) We are invited in this Rule to amend the decree of this Court in appeal from Original Decree No. 476 of 1908. The appeal was heard by a Division Bench in May a June, last, and on the 16 June, the appeal was allowed, the decree of the lower Court set aside, and the suit dismissed. The full judgment in that case is reported in 2 Ind. Cas. 662 Ed. It was further directed that the plaintiff-respondent should pay to the defendants Nos. 2, 3 and 4, the then appellants before this Court, the costs incurred by them in the lower Court. These costs were not specified in the decree of this Court, but had been set out in the decree of the lower Court, which to this extent was thus incorporated by implication. In that decree, however, by a clerical error, the amount of costs incurred by the second and third defendants stated to be Rs. 684-8-6, whereas it ought to have been Rs. 1,549-12 6. So far as the fourth defendant was concerned, the costs payable to him had been inaccurately stated to be Rs. 1,310, instead of Rs. 1,310-10. The petitioners now ask that the decree of this Court, in so far as it incorporates by reference the decree of the Court below may be amended so as to enable them to recover from the plaintiff the correct amount of costs. The learned Vakil who has appeared to show cause has not challenged the accuracy of the allegations of the petitioners, but has contended that the Rule ought to be discharged on three grounds; namely, first, that the Court as now constituted has no jurisdiction to entertain the application, inasmuch as the original appeal was heard by Mr. Justice Chitty and Mr. Justice Carnduff; secondly, that inasmuch as leave has been granted to the plaintiff to appeal to His Majesty in Council, it is no longer competent to this Court to amend the decree; and, thirdly, that the application for amendment, if maintainable, at this stage, ought to be made to the Court below by which the decree in which the error is contained, was drawn up. In our opinion, there is no substance in any of these contentions.

(2.) So far as the first point is concerned, reliance has been placed upon Section 152 of the Code of 1908, which provides that clerical errors or arithmetical mistakes may be corrected by the Court either of its own motion or on the application of parties. This does not mean that the Court to which the application is made for amendment must necessarily be composed of the same Judges as those who heard the appeal. The settle I practice of this Court has been to allow applications of this character to be made to the Division Bench in charge of the group to which belongs the case the decree in which is sought to be amended. If the provisions of the Code relating to applications for review of judgment are contrasted with the provisions contained in Section 152, and it is observed how Section 114 is, in this respect, controlled by Order 47, Rule 5, it becomes obvious that the Code expressly provides for certain applications to be made to the identical Judges who heard the original suit or appeal, and made the decree. The first objection cannot consequently be supported.

(3.) So far as the second contention is concerned, it is equally groundless. Our attention has been invited to Order 45, Rule 13, of the Code and it has been suggested that our powers in respect of cases in which leave to appeal to His Majesty in Council has been granted, are restricted to the operations specified in that order: This argument, however, overlooks the fact that Section 152 expressly provides that an order for amendment may he made by the Court at any time. We are unable to accept the suggestion that these words are restricted in their operation in any way by Order 45, Rule 13. It may further be pointed out that leave has been granted to appeal to the Judicial Committee but the transcript record has not yet been sent to England. This Court, therefore, still retains jurisdiction over the matter. The second objection thus completely fails.