Decided on September 27,1966



N.G.SHELAT - (1.) This appeal arises out of an order passed on 23rd October 1959 by Mr. S. L. Bapat Third Extra Assistant Judge Ahmedabad in Civil Appeal No. 175 of 1958 whereby the order passed by the Court of the Civil Judge (Junior Division) Dholka in Darkhast No. 49 of 1952 came to be set aside and the Darkhast was remanded back to the Lower Court for proceeding further in accordance with law.
(2.) Bai Monghi widow of Doongersi Dipchand the respondent had filed Civil Suit No. 60 of 1943 against the appellant in the Court of the Civil Judge (Junior Division) at Dholka had obtained a decree in her favour on 28th April 1948 By that decree the deed dated 23rd September 1942 said to have been passed by Bai Monghi in favour of the defendant in the suit was found to be nominal and not binding and that on her paying a sum of Rs. 1762-8-0 to the defendant she was to get possession of the suit property from the defendant. She Was also awarded costs of the suit and for determination of the future mesne profits an application was to be made as provided under Order XX Rule 12 of the Code of Civil Procedure. Dissatisfied with that Judgment and decree. passed by the trial Court the defendant Pragji Ranchhod preferred Civil Appeal No. 108 of 1948 in the Court of the District Judge at Ahmedabad. That appeal was heard by the Third Extra Assistant Judge Ahmedabad who confirmed the decision of the lower Court and dismissed the appeal on 28th June 1949 Then on 27th June 1949 plaintiff-Bai Monghi filed Regular Darkhast No. 49 of 1952 for execution of the decree obtained by her against the defendant in the Court of the Civil Judge Junior Division Dholka. In that Darkhast she claimed in all Rs. 239-11-9 which included the costs awarded to her in appeal No. 108 of 1948. With regard to her claim for possession of the suit property she stated therein that she had made an application for the amendment of the decree in the Court inasmuch as there has been a mistake in respect of a sum of Rs. 200/in the amount of Rs. 1762-8-0 directed to be paid to the defendant and that she would deposit the amount in Court after the amendment was made or at any other time as directed by the Court. In other words at that stage she did not deposit in Court any amount whatever which she was required to deposit to get possession of the property in that proceeding. Later on on 20-12-1952 she presented an application Ex. 6A before the Court stating inter alia that since it is not possible to know as to how much amount she is required to pay until the application for amendment of the decree is decided by the Court the Darkhast in so far as it relates to the claim for recovering the amount due on account of costs awarded by both the Courts may be directed to be proceeded with. In response to that application Ex. 6 the defendant judgment debtor submitted his statement Ex. 14 where he said that he has to get Rs. 1762-8-0 under the decree and that the amount of Rs. 239-11-9 which the plaintiff decree-holder claims against him may be taken as a set-off against his amount due from her and as the decreeholder has not done so though informed the Darkhast was liable to be dismissed.
(3.) After the appeal No. 108 of 1948 came to be decided by the learned Extra Assistant Judge Ahmedabad on 28-6-1949 and before the decree could be drawn up by that Court i. e. on 30-6-1949 Bai Monghirespondent in that appeal i. e. the original plaintiff-Darkhastdar presented an application Ex. 10 wherein she alleged that since there was a clerical error in the judgment and decree passed by the Lower Court viz. that the correct amount in place of Rs. 1762-8-0 which she is directed to pay for getting possession of the suit property should be Rs. 1562-8-0 that mistake may be corrected and the judgment and the decree may be suitably amended by the Court. The learned Advocate appearing for the appellant Pragji Ranchhod objected to the granting of any such prayer by saying that the appellate Court had no jurisdiction to entertain this application under sec. 152 of the Code of Civil Procedure and that the Court of first instance only can amend such a mistake if any as the decree was in accordance with the final order in the judgment and the application was therefore liable to be dismissed. That application was then heard and the learned appellate Judge passed an Order below that application on 7th July 1919. That order runs thus: As I have already confirmed the order and decree and amendment sought is in the judgment and decree the applicant can apply to the Lower Court as the error alleged is of the Lower Court Rejected.;

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