IN RE: VENKATANARASIMHA NAIDU Vs. STATE
IN RE: VENKATANARASIMHA NAIDU
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Shephard, J -
(1.) THE decree of the Subordinate Judge did not accord with the judgment. THEre was an appeal to the District Judge who confirmed the decree and a second appeal to this Court which terminated in the same way. Now it is sought to have the decree amended so as to make it accord with the judgment of the Subordinate Judge and the question is whether the application for that purpose is rightly made in the High Court.
(2.) THE question is narrowed by the decision of the Full Bench in Pichuvayyangar v. Seshayyangar (1894) I.L.R. 18, for there it was held in a case where there had been an appeal from the District Munsif's decree to the District Judge, that it was not competent to the District Munsif to amend his decree. THE reason of that decision is that when there has been a judgment of a Court of Appeal passed in accordance with Section 577 of the Code of Civil Procedure and a decree consequent thereon, it is that decree and not the original decree which is the operative decree in the case. THEre may be a distinction between a confirmatory decree and decree which simply dismisses the appeal. THE language of the Judicial Committee in Kistokinker Ghose Roy V/s. Bur, oda Cant Singh Roy suggests suah a distinction and the distinction has been Recognized by the Bombay High Court in Bapu V/s. Vajir 1896 I.L.R. 21 B. 548 in a case to which Section 551 of the Civil P. C. had been applied. It is not necessary, however, in the present case to decide this point because the decree of this Court confirmed that of the District Judge as the latter confirmed that of the Sub-Judge. It appears to me that as the Subordinate Judge could not after the decree had been passed by the District Court rectify his own decree, so and for the same reasons the District Judge cannot now make the required amendment. By reference, though not in direct terms the decree of the High Court confirmed the decree of the Subordinate Judge and that decree is the only one now subsisting, and, therefore, is the one which ought to be amended, for it is obviously useless to amend any decree except that which is to Be executed. For these reasons, I think the application is rightly made to this Court. Notice will issue accordingly.;
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