D.K. Seth, J. - (1.) In a suit filed by the plaintiff/appellant on 24th July, 1997 against HMT Limited (HMT) as defendant for a decree for Rs. 1,11,91,000/-, HMT had filed its written statement claiming Rs. 80,01,000/- and interest against the plaintiff. This counter-claim was sought to be enforced through Chapter XIII of the Original Side Rules (OS Rules). On the application filed by the defendant for judgment on admission, a decree was passed on 26th September, 2000 in favour of HMT against the plaintiff for Rs. 69,68,000/- with interest and the rest of the suit was directed to be tried. The appeal preferred by the plaintiffs against the said decree dated 26th September, 2000 was dismissed on 18th April, 2001. The decree dated 26th September, 2000 passed in the suit merged in that of the Appeal Court. The special leave petition by the plaintiff thereout to the Supreme Court was dismissed on 5th October, 2001. The application for execution made by HMT stood dismissed by an order dated 13th September, 2002 on the ground that HMT had transferred its rights including those under same cannot be executed until the decree is amended. At the same time by an order dated 17th September, 2002, opportunity was given to HMT Watches to make appropriate application in the suit.
(2.) It may be noted that in terms of a scheme of arrangement, the Watch Division of HMT Limited was incorporated as HMT Watches Ltd., a wholly owned subsidiary of HMT on 9th August, 1999. The Registrar of Companies granted a certificate of commencement of business to HMT Watches on 28th March, 2001. The Ministry of Law, Justice and Company Affairs, Department of Company Affairs of Union of India sanctioned the scheme of amalgamation on 30th March, 2001. The scheme of arrangement, as approved and sanctioned, in Clause 4, Part 2(B) at page 10, provides that:-- "All legal or other proceedings by or against HMT whether pending on the Effective Date or any matter arising before the Appointed Date and relating to the Watch Division (including those relating to any property, right, power, liability, obligation or duty of HMT in respect of the Watch Division) shall be continued and enforced by or against HMT WATCHES only, if proceedings are taken against HMT, HMT will defend on notice or as per advice of HMT WATCHES at the cost of HMT WATCHES and HMT WATCHES will indemnify and keep indemnified HMT from and against all liabilities, obligations, actions, claims and demands in respect thereof. "
(3.) In this background, the application for amendment of the decree sought for is to be considered. It is the decree of the Appeal Court that was sought to be executed, since the SLP having been dismissed, the decree of the Trial Court had merged in that of the Appeal Court. This amendment is opposed by the plaintiff/appellant on the ground that that under Order 20 Rule 3 of the Civil Procedure Code (CPC), once the decree is signed, the Court becomes functus offico and it cannot add to or alter the decree except under Section 152 Civil Procedure Code or on review. He further contends that once the decree is drawn up, sealed and signed under Chapter 16, Rule 24 of the OS Rules, the Court cannot amend the decree. The second ground taken on behalf of the plaintiff/appellant is that the notice of motion has been taken out by HMT, which admittedly has no interest in the decree after the, incorporation of HMT Watches. In fact, HMT Watches has been espousing the appllication for amendment, whereas the notice of motion was taken out by HMT. Therefore, HMT Watches is not entitled to any relief on the basis of a notice of motion taken out by HMT. On these two fold reasons the application should be dismissed.;