I.S. Tiwana, J. - (1.) TO appreciate the prayer made in this application for the dismissal of R. F. A No. 88 of 1982 the following fats deserve to be noticed
(2.) A decree for specific performance of agreement dated 5.5.80 directing the appellant to execute the sale deed in favour of the respondents was passed on 15.1.82. The operative part of the decree read "that the plaintiff is directed to get the sale deed executed from the defendants and in default of the same he can get the sale deed executed through Court on payment of the remaining purchase price agreed to be paid by the plaintiffs to defendant No. 1 within one month from today." The defendant in the suit preferred the present appeal against this decree on 15.2.82 which was admitted on 6.2.82 and dispossession of the appellant was stayed. The stay was affirmed on 4.5.82 after notice to the other side. Now the decree holder applicants point out that the decree dated 15.1.82 against which RFA No. 88/82 was preferred was amended by the lower Court on 13.2.82 i.e. two days prior to the filing of the appeal and the appellant having failed to prefer any appeal against the amended decree, the appeal filed in this Court deserves to be dismissed as incompetent According to the learned counsel for the applicant the alteration ordered by the lower Court amounts to review or amendment of the decree and can certainty not be styled as a clerical error. According to the learned counsel, the word "from today" appearing after the word within one month was deleted and instead the word "from the date of refusal of the defendant to execute the sale deed" were substituted. This amounted to an amendment of the decree and cannot be called clarification or a clerical mistake. In support of his contention that such alteration would amount to amendment, the learned counsel seeks reliance from a reported judgment of the Supreme Court in S.K. Sen v. State of Bihar : A.I.R. 1975 S.C. 1185.
(3.) AFTER giving my thoughtful consideration to the entire matter, I do not find any merit in the plea raised on behalf of the applicants To me, a bare reading of the order of the lower Court or the alteration made in the decree indicates that the Court has ordered nothing more than the extension of time for the compliance of the decree. In somewhat similar situation, their Lordships of the Supreme Court in Sandhy Rani v. Sudha Rani : A.I.R. 1978 SC 537 have observed that "it is also not possible to entertain the contention that the order extending the time to deposit the balance of consideration would result in amending the decree." As already pointed out, what has been done by the lower Court is that the defendant decree holders can get the sale deed executed instead of one month from the date of the decree within one month after the date of refusal to execute the sale deed by the plaintiff. Further, I am of the view that the order in question has been passed by the lower Court without any due or proper notice to the defendant -appellant. As per the order of the Court dated 13.2.1982, notice of the application made by the other side under sections 151/152 C.P.C. was issued to the counsel for the defendant -appellant and the learned counsel had refused to accept the same on the plea that he was no more the counsel for the defendant -judgment debtors and the latter had even taken the brief from him. In spite of this, no notice was issued to the defendant judgment debtor.;