KANHAIYALAL Vs. BHAIRUNDAN
LAWS(RAJ)-1952-5-22
HIGH COURT OF RAJASTHAN
Decided on May 13,1952

KANHAIYALAL Appellant
VERSUS
BHAIRUNDAN Respondents


Referred Judgements :-

HATTON VS. HARRIS [REFERRED TO]
MUNNUSWAMI PILLAI VS. MAHADI HUSSAIN KHAN [REFERRED TO]
SAMAL SINGH VS. JHUMKO [REFERRED TO]
PITAM LAL VS. BALWANT SINGH [REFERRED TO]


JUDGEMENT

Wanchoo, C. J. - (1.)THIS is an application by Kanhaiyalal for amendment of decree of this Court.
(2.)THE facts leading to this application are these - Kanhaiyalal had filed a suit for redemption of a mortgage. THE suit was decreed by the first court on payment of Rs. 15,086/-/6 with costs. THEre was an appeal by the defendant who claimed a further sum of Rs. 25. 795/ -. This appeal was partly allowed by this Court, and a decree for a further sum of Rs. 3,787/14/6 was allowed to the defendant. In addition to this the defendant was allowed to remove the materials, or if the plaintiff wanted to retain the materials he was to pay Rs. 3,757/4/6 to the defendant. Thus the defendant gained in all Rs. 7,545/3/- by the decree of the Court. It was further provided that the defendant would get his costs of the appeal according to success.
The contention of the applicant is that the decree which was prepared in consequence was wrong as the defendant was only entitled to court fee, lawyer's fees and miscellaneous expenses in proportion to his success, but, by mistake, the decree, that was prepared, gave him the entire cost incurred by him on a valuation of Rs. 25,795/ -. The applicant, therefore, prayed for necessary correction in the decree.

This application was made on the 19th December, 1951. The decree of the Court in which correction was sought, was passed on the 24th January, 1950. Thereafter, there was a final decree by the lower court on the 10th October, 1950. This was put in execution on the 19th of August, 1950 by the present applicant who was the decree-holder. He deposited the amount according to what he now calls an incorrect decree in the executing court. This sum was taken away by the defendant mortgagee on the 18th December, 1951.

There is no doubt that the decree, which was prepared on the basis of the judgment dated the 24th January, 1950, was wrong so far as taxation of court fee and lawyer's fee was concerned. The defendant was entitled only to costs on these items in proportion to his success, while the court fee and the lawyer's fee, as put down in the decree, were based on the valuation of the appeal which was Rs. 25,795/ -. The contention of the applicant is that the defendant should have been allowed court fee and lawyer's fee on the sum of Rs. 3,787/14/6 only. We are of opinion that the correct figure on which lawyer's fee and court fee should have been calculated is Rs. 7,545/3/- which we have already mentioned.

The question, however, that arises is whether we can now correct the decree. It has been contended on behalf of the opposite party that full satisfaction of the decree was recorded on the 18th December, 1951 before the application for correction was filed in this Court, and therefore this Court should not now interfere. We find, however, that this is not quite correct. On that day, the defendant, opposite party, took away the money which had been deposited by the applicant plaintiff, but the execution application was struck off on the 16th February, 1952, on the ground that the decree had been satisfied. Actually, therefore, the execution application was pending on the 19th December, 1951, when the present application for amendment was made.

Learned counsel for the opposite party relies mainly on the observations of Daniels,, J. in Pitam Lal vs. Balwant Singh (A. I. R. 1925 Alld. , 556 ). In that case, it was held that the court had full power to allow or dismiss an application under sec. 152 of the Code of Civil Procedure. That was a case in which the defendant applied for amendment of the decree three years after the decree had been satisfied in full and the case had been struck off. The first court felt itself bound to allow the amendment and granted the application. In revision it was held that it was within the discretion of the court to allow or refuse an amendment under sec. 152 of the Code of Civil Procedure, and Sulaiman, J. said that, in the circumstances of that particular case, the application should have been dismissed. Daniels,, J. went further and observed as follows: - "i would be prepared to go a step further and hold that when a decree for money had been finally satisfied and discharged, the Court is functus officio and can no longer entertain an application for amendment under sec. 152 of the Code of Civil Procedure. "

A similar question arose in Munuswami Pillai vs. Mahdi Hussain Khan Sahib (A. I. R. 1926 Madras, 516 ). There the application for amendment of decree was made about 9 months after the decree had been entered as satisfied and the execution had been struck off. It was held that amendment of a decree after satisfaction had been entered is not possible, unless steps were also taken, at the same time, to set aside the order recording satisfaction.

A somewhat contrary view was taken in Samal Singh vs. Jhunkoo Singh and others (A. I. R. 1946 Oudh, 210 ). In that case there was a suit for partition of certain properties. The suit was referred to arbitration, and the arbitrator, by mistake, did not include one plot in the share of either party, but in the decree that followed that plot was allotted to Samal Singh. The decree was executed and Samal Singh got formal possession of the plot also and got mutation some years later. Thereafter, Jhunkoo Singh and others applied for correction of the decree on the ground that the plot had not been allotted to Samal Singh by the award, and that the decree had been wrongly prepared. The correction was allowed by the court, though the application was made almost nine years after the decree, and it was held that - "where rights of third parties have not intervened, it is not only in the power, but it is the duty of the Court, to relieve a party of the injury done to him by it, by reason of its mistakes land defaults and mistakes or defaults of its officers inadvertently committed. "

Reference may also be made to Henry William Hatton vs. Hugh Harris (1892 Appeal Cases, 547), in which an error in the decree was corrected after 39 years. Lord Watson observed as follows at p. 560 - "when an error of that kind has been committed, it is always within the competency of the Court, if nothing has intervened which would render it inexpedient or inequitable to do, to correct the record in order to bring it into harmony with the order which the judge obviously meant to pronounce. " It is, however, remarkable that in that case the decree had not been satisfied till the time the correction was made.

We are of opinion that the case before us is not covered by the observations of Daniels,, J. in Pitamlals case, because the decree was still in existence, and execution proceedings had not terminated when the application for correction was made. It is true that the applicant had deposited the money and the opposite party had taken it away, but that was not sufficient to bring the decree to an end, as it was a redemption decree and the applicant had still to get possession of the property and get back the documents from the opposite party. This he succeeded in doing about 3 months later, and then the decree was struck off on the 16th February, 1952, in full satisfaction. The present therefore is a case where the decree was alive on the date the application for amendment was made. In such a case the principle enunciated in Hatton vs. Harris mentioned above applies, and the court should amend the decree in order to bring it into harmony with the order which the judge obviously meant to pronounce, provided nothing has intervened which would render it inexpedient or inequitable to do so. In the present case, nothing has intervened which makes it inexpedient or inequitable to make the correction.

It was next urged on behalf of the opposite party that there was delay on the part of the applicant in applying for correction of the decree. Undoubtedly, if the applicant had been vigilant, he could have got his decree corrected long before, but the case of Hatton vs. Harris cited above is itself an instance where the correction was made after about 39 years. The delay, therefore, is immaterial where the decree is alive and nothing has intervened which would render it inexpedient or inequitable to amend it. In the present case, the application was made while the decree was still alive and under execution, and therefore the execution was subject to the result of the amendment application.

We, therefore, allow this application, and order that the decree be corrected by amending the amount allowed as court fee and lawyer's fee. These two fees should be charged on the valuation of Rs. 7,545/3/ -. The necessary amendment will be made in the office. In view, however, of the fact that the applicant could, if he had been more vigilant, get the decree corrected much earlier, we order parties to bear their own costs of this application. .



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