Salil Kumar Datta, J. - (1.) This Rule was obtained by the successor-in-interest of Raja Janaki Nath Roy, Narendra Nath Roy & Co. (P) Ltd., the plaintiff-respondent in S. A. 638 of 1952. The appeal was heard and disposed of by a Division Bench of this Court consisting of Guha Roy and S. K. Sen, JJ. on 26-8-1955 whereby the appeal was allowed and the plaintiff's suit was dismissed and costs throughout were awarded to the defendants. It appears that on 5-2-1958 the above company went into liquidation and the opposite parties in this rule, the heirs and legal representatives of the defendant started execution for realisation of the decretal dues without mentioning that the said company was in liquidation. The proceeding culminated in S. M. A. 57 of 1961 and it was ordered by this Court on 6-2-1963 that the executing Court would allow the amendment of the execution petition showing that the said company was in liquidation represented by its liquidators. It appears that an amendment was made as stated above and on 17-6-1963 the joint liquidators filed an objection under Section 47 on the ground that the decree was not in conformity with the judgment and Misc. Case No, 39 of 1963 was started thereon. The executing Court by an order dated 19-4-1969 held that the mistake or error in the decree could be corrected only by the High Court which passed the decree. Pursuant to the same an application was filed in this Court on 16-9-1969 for modification and correction of the decree in accordance with the judgment in the connected second appeal deleting the provision of interest on decretal costs and on the said application the present Rule was issued on 20-11-1969. The Rule has been opposed by the opposite parties who filed an affidavit-in-opposition in support. It was stated that the decree was in conformity with the judgment as also with the provisions of the Civil P. C. and the then extant Appellate Side Rules. It was further contended that the application was not maintainable and was filed after a lapse of 15 years which showed that the petitioners were guilty of gross and inexcusable delay and, accordingly in any event, were not entitled to any relief.
(2.) Before proceeding further it will be convenient to look into the judgment and decree of the connected second appeal. The material provisions in the judgment dated 26-8-1955 are as follows: "The appeal is therefore allowed with costs throughout and the decree of the learned Additional District Judge is set aside. The suit will stand dismissed with costs." The decree as drawn up provides as follows: "It is ordered and decreed that the decree of the lower appellate Court be and the same is hereby set aside, that of the Court of the first instance restored and the plaintiff's suit dismissed. And it is further ordered and decreed that the plaintiff-respondent do pay to the defendant-appellant the sum of Rupees 428-2-0 annas only (as per details on foot) being the amount of costs incurred by the latter in this Court with interest thereon at the rate of six per cent, per annum from this date until realisation. And it is further ordered and decreed that the said plaintiff do pay to the said defendant the costs incurred by the latter in the lower Courts with interest thereon at the rate aforesaid from the date of the decrees of the said lower Courts until realisation."
(3.) This decree was signed by the Hon'ble Judges on 7-9-1955. The decree was drawn in the customary printed form wherein in the portion for costs the blanks in the form were filled up inserting appropriate' words which are underlined in the above extract quoted.;