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Durga Singh v. Wahid Raza And Others
Factual and Procedural Background
Wahid Raza and others sued Durga Singh for recovery of possession of certain plots and for damages. The learned Munsif of Moradabad dismissed the suit, but the Additional Civil Judge of Moradabad allowed the plaintiffs' appeal and decreed the suit in their favour. Durga Singh filed a Second Appeal in this Court, which was summarily dismissed under Order XLI, Rule 11, C.P.C.
The plaint had described the land in dispute as two plots in village Noorpur; the plaintiffs alleged that the correct village was Pandit Nagla. The plaintiffs applied under Sections 151, 152 and 153, C.P.C. to the Additional Civil Judge for amendment of the plaint and decree to correct the village description. Durga Singh opposed the application. The Additional Civil Judge allowed the amendment by order dated 7-1-1961. Durga Singh filed this Civil Revision challenging that order.
Legal Issues Presented
- Whether the alleged mistake in the decree (the incorrect village description) is a clerical or arithmetical mistake capable of correction under Sections 151, 152 and 153, C.P.C.
- Whether, given that the Second Appeal was summarily dismissed under Order XLI, Rule 11, C.P.C., the trial/appellate-subordinate court (the Additional Civil Judge) retained jurisdiction to amend its decree, or whether the High Court (which dismissed the Second Appeal) is the competent court to entertain any amendment application.
- Whether the order dated 7-1-1961 allowing the amendment was passed without jurisdiction and therefore liable to be set aside.
Arguments of the Parties
Applicant's Arguments (Durga Singh)
- The alleged mistake is neither clerical nor arithmetical and therefore cannot be corrected under Sections 151, 152 and 153, C.P.C.
- An application for amendment should have been filed before the High Court which dismissed the Second Appeal and finally disposed of the case; the Additional Civil Judge lacked jurisdiction.
Plaintiffs' Arguments
The opinion does not contain a detailed account of the plaintiffs' legal arguments beyond their application seeking amendment to show the disputed plots as lying in Pandit Nagla rather than Noorpur.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Batuk Prasad v. Ambika Prasad, A.I.R. 1932 Pat. 238 | If an appeal is summarily dismissed under Order XLI, Rule 11, C.P.C., the original decree of the lower Court is neither varied nor reversed but left untouched; the original court can amend the decree to conform with the judgment. | Cited to explain one view that the original court can amend the decree where appellate dismissal is summary; used as part of the authorities considered by the Court. |
| Hussain Sah v. Sita-ram, A.I.R. 1953 Bom. 122 | If an appeal is summarily dismissed under Order XLI, Rule 11, C.P.C., an application for amendment of the decree should be made to the court which passed the substantive decree (i.e., the trial court). | Noted as taking the same view as Batuk Prasad; considered by the Court in evaluating divergent authorities. |
| Chinta Mani v. Debi Prasad, A.I.R. 1934 All. 971 | Section 152 deals with clerical and arithmetical mistakes; the words "at any time" permit correction even where the lower-court decree has merged in the appellate decree, but only for clerical/arithmetical errors. | Applied to distinguish the present case: the error alleged (wrong village) is not an arithmetical error and is at best doubtful as a clerical mistake; therefore Sec.152 would not plainly justify amendment by the trial court here. |
| Asma Bibi v. Ahmad Husain, I.L.R. XXX Alld. 290 | Dismissal of an appeal under Sec. 551 (old Code) is a decree and supersedes the decree of the Court below; the court which took action under Sec. 551 is the only court with jurisdiction to amend under Sec. 206. The language is similar to Order XLI, Rule 11. | Relied upon as authority for the proposition that dismissal under Order XLI, Rule 11 has the effect of creating the appellate court's decree as the operative decree and that the appellate court is the proper forum for amendment. |
| Shea Balak Singh v. Mahabir Singh, A.I.R. 1931 Alld. 704 | Once a decree is affirmed by the High Court it merges into the decree of the High Court; the lower court cannot vary that decree by review. | Used to support the merger doctrine applied by the Court: an affirmed decree merges into the High Court's decree and cannot be varied by the trial court. |
| Deba Nand Naithani v. Jaya Nand, 1962 A.L.J. 105 | Where the trial Court's decree has been affirmed or varied in appeal, the executable decree is that of the appellate Court; the appellate Court has jurisdiction to amend such a decree, not the trial Court. | Relied upon to support the proposition that jurisdiction to amend lies with the appellate Court where the appellate decree supersedes the trial decree. |
| Ramanna v. Sreeramulu, A.I.R. 1958 A.P. 768 | No essential difference between dismissal under Order XLI, Rule 11 and dismissal under Order XLI, Rule 37; in both cases the appellate Court's decree governs the rights of parties and the decree of the lower Court merges into it; amendment applications should be made to the appellate Court. | The Court expressly agreed with this view and applied it: the doctrine of merger applies where a Second Appeal is summarily dismissed under Order XLI, Rule 11, so the Additional Civil Judge's decree merged in the High Court's decree. |
Court's Reasoning and Analysis
The Court examined competing authorities on the effect of summary dismissal of appeals under Order XLI, Rule 11, C.P.C. It noted authorities supporting both positions: that the original decree remains untouched and that the original court may amend it (Batuk Prasad; Hussain Sah), and authorities holding that the appellate decree supersedes the trial decree and amendments must be sought from the appellate Court (Asma Bibi; Shea Balak Singh; Deba Nand Naithani; Ramanna).
The Court analyzed Section 152's limited remit to correct clerical and arithmetical mistakes (as explained in Chinta Mani) and observed that the plaintiffs' alleged error — misdescription of the village (Noorpur vs Pandit Nagla) — is not an arithmetical mistake and is at best doubtful as a clerical mistake. Thus Sec.152 would not clearly justify correction by the trial court in the present circumstances.
The Court accepted the reasoning in Ramanna that there is no essential distinction between dismissals under Order XLI, Rule 11 and under Rule 37 for purposes of effect; in both situations the appellate Court's decree adjudicates parties' rights and the trial court's decree merges into the appellate decree. Applying that doctrine of merger to the facts, the Court held that when this Court summarily dismissed the Second Appeal under Order XLI, Rule 11, the decree of the Additional Civil Judge merged into the High Court's decree. Consequently, the Additional Civil Judge was not competent to entertain and allow the amendment application; the order dated 7-1-1961 was passed without jurisdiction.
Holding and Implications
HOLDING: The revision is allowed. The order of the Additional Civil Judge, Moradabad dated 7-1-1961, allowing amendment under Sections 151, 152 and 153, C.P.C., is set aside and that application is dismissed.
Implications:
- The Court held that the decree of the Additional Civil Judge merged in the decree of this Court when the Second Appeal was summarily dismissed under Order XLI, Rule 11, C.P.C.; therefore the Additional Civil Judge lacked jurisdiction to amend the decree.
- If the plaintiffs wish to obtain amendment of the decree they must approach the High Court (the appellate Court which dismissed the Second Appeal).
- The parties are to bear their own costs in the two Courts. The decision was given with reference to existing authorities; the Court applied and followed the doctrine of merger as reflected in the precedents it discussed.
V.G Oak, J.:— This Civil Revision by a defendant arises out of a proceeding for amendment of a decree under Secs. 151, 152 and 153, C.P.C
2. Wahid Raza and others brought a suit against Durga Singh defendant for recovery of possession over certain plots and damages. The suit was dismissed by the learned Munsif of Moradabad, but was decreed in appeal by the Additional Civil Judge of Moradabad. A Second Appeal by Durga Singh defendant was summarily dismissed by this Court under Order XLI, Rule 11, C.P.C In the plaint the land in dispute was described as two plots situate in village Noorpur. According to the plaintiffs, that description was incorrect. In fact the plots lie in another village pandit Nagla. The plaintiffs, therefore, filed the application under Secs. 151, 152 and 153, C.P.C before the Additional Civil Judge of Moradabad for amendment of the decree. That application was opposed by Durga Singh defendant. But the learned Additional Civil Judge overruled Durga Singh's objection, and allowed amendment of the plaint and the decree by his order dated 7-1-1961. This Civil Revision by Durga Singh defendant is directed against that order dated 7-1-1961, allowing amendment.
3. Mr. Krishna Sahai, appearing for the applicant, urged two points before us. Firstly, he contended that the alleged mistake was neither a clerical mistake nor an arithmetical mistake. The alleged mistake could not be corrected by an application under Secs. 151, 152 and 153, C.P.C Secondly, it was urged that an application for amendment ought to have been filed before the High Court, which dismissed the Second Appeal and finally disposed of the case.
4. In Batuk Prasad v. Ambika Prasad A.I.R 1932 Pat. 238. it was held that, if an appeal is summarily dismissed under Order XLI, Rule 11, C.P.C, the original decree of the lower Court is neither varied nor reversed but is left untouched. Therefore, it is the original Court and not the appellate Court which can amend the decree to make it in conformity with the judgment.
5. The same view was taken by Chagla, C.J in Hussain Sah v. Sita-ram A.I.R 1953 Bom. 122.. It was held that, if an appeal has been summarily dismissed under Order XLI, Rule 11, C.P.C, an application for amendment of the decree should be made not to the appellate Court but to the court which passed the substantive decree.
6. In Chinta Mani v. Debi Prasad A.I.R 1934 All 971. it was held by Bennet, J. that Sec. 152, C.P.C deals with the special case of correction of clerical and arithmetical mistakes. The words “at any time” have special significance in Sec. 152. Those words provide for a case where the decree of the Court below has merged in the decree of the appellate Court. That section gives the lower Court power even in such a case to make an amendment if the amendment is merely of a clerical or arithmetical mistake. In that case the valuation of the suit was Rs. 6,000. Percentage admissible was Rs. 270; but the decree contained Rs. 6/4/- only. Amendment was, therefore, allowed. It will be noticed that in that case the Court was dealing with a mistake, which was obviously an arithmetical error. In the present case the question raised by the plaintiffs in the amendment application was that the plots in dispute lay in village Pandit Nagla and not in village Noorpur. Obviously, that was not an arithmetical mistake. It is doubtful whether the alleged mistake can be described as a clerical mistake.
7. In Asma Bibi v. Ahmad Husain I.L.R XXX Alld. 290. it was held that, dismissal of an appeal under Sec. 551, C.P.C is a decree and supersedes the decree of the Court below. The Court which has taken action under Sec. 551 is the only Court which has jurisdiction to amend the decree under Sec. 206 of the Code. We find that the language of Sec. 551 of the old Code of Civil Procedure is similar to the language of Order XLI, Rule 11 of the present Code of Civil Procedure. This decision is, therefore, an authority as regards the true effect of dismissal of an appeal under Order XLI, Rule 11, C.P.C
8. In Shea Balak Singh v. Mahabir Singh A.I.R 1931 Alld. 704. it was held that, once a decree is affirmed by the High Court it merges into the decree of the High Court, and it is no longer open to the lower Court to vary that decree by way of review.
9. In Deba Nand Naithani v. Jaya Nand 1962 A.L.J 105. Mithan Lal, J. held that, in cases in which the decree of the trial Court has been affirmed or varied in appeal the only executable decree is that of the appellate Court because in such a case the decree of the lower Court shall be deemed to have been superseded. The Court which will have jurisdiction to amend such a decree would be the appellate Court, and not the trial Court.
10. Ramanna v. Sreeramulu A.I.R 1958 A.P 768. is a decision by a Division Bench of Andhra Pradesh High Court. It was held by the Bench that there is no difference in essence between a judgment dismissing an appeal under Or. XLI, Rule 11, C.P.C and that made under Or. XLI, Rule 37, C.P.C In both the cases the judgment of the appellate Court adjudicates upon the rights of the parties, though in one case the manner of disposal is concise and speedy, and in the other it takes a more elaborate form and longer time. Whether the appeal is dismissed in limine against the ex parte respondent or dismissed after hearing the respondent, it is the decree of the appellate Court that governs the rights of the parties. As the appellate decree is the final decree and the decree of the lower Court merges with it, it follows that the application for amendment of the decree should be made to the appellate Court. Subba Rao, C.J was a member of the Bench, which decided that case.
11. We respectfully agree with the view taken by the Andhra Pradesh High Court in Ramanna's case. The doctrine of merger applies even where a second appeal has been dismissed by the High Court summarily under Or. XLI, Rule 11, C.P.C In the present case the decree of the Additional Civil Judge of Moradabad merged in the decree of the High Court dismissing the second appeal summarily. The plaintiffs were aware that the trial Court's decree merged in the decree of the Additional Civil Judge. That is why the plaintiffs approached the Additional Civil Judge for amendment of the decree. But the plaintiffs were apparently not prepared to accept the position that the decree of the Additional Civil Judge merged in the decree of the High Court. The true position is that the decree of the Additional Civil Judge of Moradabad has merged in the decree of the High Court passed in Second Appeal.
12. If the plaintiffs wish to obtain an amendment of the decree, they will have to approach the High Court. The Additional Civil Judge was not competent to amend the decree. The order dated 7-1-1961 having been passed without jurisdiction, that order must be set aside.
13. The revision is allowed. We set aside the order of the learned Additional Civil Judge, Moradabad dated 7-1-1961. The application moved before him under Secs. 151, 152 and 153, C.P.C shall stand dismissed. Parties shall bear their own costs in the two Courts.
14. Revision allowed.
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