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Annapu Ramanna v. Ponduri Sreeramulu And Others

Andhra Pradesh High Court

Jan 16, 1958

Judgment

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Structured Summary of the Opinion

Factual and Procedural Background

The proceedings arise out of O.S. No. 346 of 1949 filed in the District Munsifs Court, Srikakulam, for specific performance of an agreement to sell dated 29-2-1949 and for possession of the plaint schedule property. The 1st respondent (before the High Court) was a subsequent purchaser under a registered sale deed of the suit property dated 29-2-1949 and had notice of the agreement in favour of the plaintiff.

The trial Court decreed the suit on 27-3-1950, directing execution of a sale deed subject to deposit of a specified sum by the plaintiff. On appeal (A.S. No. 120 of 1950) the Subordinate Judge confirmed the decree. A second appeal to the High Court was dismissed at the admission stage on 1-11-1951 under Order 41, Rule 11, C.P.C.

After receiving certified copies of the judgments and decrees, the applicant discovered that the relief for possession had been omitted from the decree and judgment. He filed applications for amendment in the Subordinate Judge's Court and in the District Munsif's Court (I.A. No. 240 of 1951 and I.A. No. 977 of 1951 respectively). Those applications were dismissed: the Subordinate Judge said the decree conformed to the judgment and the District Munsif dismissed the amendment primarily because no separate court-fee had been paid for the relief of possession.

Subsequently the applicant obtained a sale deed through the Court (the opinion records the date as 2-7-1952 in one paragraph and 2-7-1951 in another paragraph of the judgment) and filed a fresh suit for possession on title (O.S. No. 323 of 1951/1952 according to different parts of the opinion). The defendants in that suit argued that the relief for possession had been omitted and must be deemed to have been refused earlier; that contention led to the present application to the High Court seeking amendment of the High Court's affirmed decree to include possession.

Legal Issues Presented

Whether, when a second appeal is dismissed in limine under Order 41, Rule 11, C.P.C. (i.e., without notice being issued to the respondent), an application for amendment of the decree (to correct an alleged accidental omission) is maintainable in the appellate (High) Court.
Whether the omission of a prayer for possession in a decree rendered on a suit for specific performance and possession constitutes an "accidental slip or omission" correctable under Section 152, C.P.C.

Arguments of the Parties

Applicant's (Plaintiff) Contentions

The decree and judgment, as affirmed by the High Court, inadvertently omitted the relief for possession even though the suit sought specific performance and possession; that omission is accidental and should be corrected.
The amendment application was filed after discovery of the omission and after steps taken to obtain execution (including obtaining a sale deed through Court); the appropriate remedy is correction under Section 152, C.P.C.

Respondent's Contentions

The decree of the High Court was in accordance with its judgment, and the correct course was a review (or other remedy) rather than amendment in the High Court; alternatively, the application should have been made to the Subordinate Court rather than to the High Court.
The applicant was guilty of laches in seeking amendment many years after the alleged omission, and so should not be granted a discretionary remedy.
At earlier stages the respondents had contended that the plaintiff was not entitled to possession unless and until the sale deed was executed and that omission of the possession-relief in the decree was proper.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Subbamma v. Madhavarao, AIR 1946 Mad 492	Held that an order dismissing an appeal in limine under O.41 R.11 is a decree within the meaning of S.2(2), C.P.C.; such a decree supersedes the lower court's decree and an application for amendment lies to the appellate Court.	The Court described this as a recent Madras decision supporting the applicant's position but noted conflicting authorities elsewhere; it was considered among the Madras decisions which the Court treated as persuasive and binding in this jurisdiction.
Munisami Naidu v. Munisami Reddi, ILR 22 Mad 293	Referenced as authority relied upon by Horwill, J. in Subbamma.	Referred to in the discussion of Madras practice and treated as part of the line of Madras authority supporting amendment before the appellate Court.
Batuk Prasad Singh v. Ambika Prasad Singh, AIR 1932 Pat 238 : ILR 11 Pat 409	Patna decision taking a different view (that amendment belonged to the High Court and not to the trial Court) — relied on elsewhere as authority for opposite proposition.	The Court noted that Horwill, J. did not follow this Patna authority; the judgment records the existence of conflicting High Court views and treats the Patna/Bombay line as representing the opposing view which the Court declines to follow.
Uma Sundari Devi v. Bindu Bashini, ILR 24 Cal 759	Calcutta decision referenced by Wort, J. in Patna judgment; part of the matrix of conflicting high court authorities.	Noted as forming part of the conflicting authorities; the Court aligns itself with Calcutta's approach in preference to Patna/Bombay decisions.
Bapu v. Vajir, ILR 21 Bom 548	Bombay decision whose reasoning was preferred by Wort, J. in the Patna Bench decision; represents the Bombay view on the effect of the amendment of S.551 (1888).	Referred to as supportive of the view that an appellate dismissal in limine should be treated like other appellate dismissals; the Court considered these authorities in the comparative analysis but ultimately preferred the Madras/Calcutta/Allahabad line.
ILR 18 Mad 214 (Pichuvayvangar v. Sheshayyangar / Full Bench)	Full Bench view that the trial court loses power to amend its decree once an appeal has been entertained and a decree passed thereon; appellate decree supersedes trial decree.	The Court relied on this Full Bench Madras decision as authoritative and binding, applying its principle to hold that amendment should be sought in the appellate Court (i.e., maintainable in the second appeal).
Kristo Kinkar v. Burroda Kant, 14 Moo Ind App 465 (P.C.)	Judicial Committee observations (referenced as supporting certain views on the effect of the 1888 amendment).	Referred to by Fazl Ali, J. in the Patna discussion and mentioned by the Court as part of the authorities considered in the historical and comparative analysis of the statutory provisions.
Tribeni Prasad v. Mt. Rukmin Devi, AIR 1941 Oudh 251	Court (Oudh) aligning with the Bombay/Patna view.	Noted as part of the cluster of authorities sharing the Bombay/Patna view; the Court recorded these decisions but preferred the Madras/Calcutta/Allahabad line instead.
Sheolal v. Md. Ismail, AIR 1933 Nag 117	Nagpur decision in the same line as the Bombay/Patna view.	Mentioned among conflicting authorities; the opinion records Nagpur as sharing the opposite view but the Court did not follow it.
Hussain Sab v. Sitaram Vigneshwar, AIR 1953 Bom 122	Bombay decision reflecting the Bombay High Court approach.	Listed among authorities representing the differing Bombay view; the Court noted the conflict and adopted the Madras/Calcutta/Allahabad position instead.
Jamuna Prasad Rai v. Rajballam Rai, AIR 1937 Pat 349	Patna decision cited among Patna authorities.	Mentioned as part of the body of Patna authority; used in the Court's survey of conflicting High Court decisions.
Asma Bibi v. Ahmed Hussain, ILR 30 All 290	Allahabad decision aligning with Madras/Calcutta approach.	Noted as supporting the Madras line; the Court treated decisions of Madras, Calcutta and Allahabad as preferable and followed them.
Mt. Silarbi v. Mahadu Dhangar, AIR 1920 Nag 80	Nagpur decision (earlier case) reflecting Nagpur practice.	Included in the list of authorities illustrating divided opinion across High Courts; the Court recorded Nagpur's mixed position.
Sundara Ramanujam v. Sivalingam, ILR 47 Mad 150 : AIR 1924 Mad 360	Madras Division Bench: scope of a suit for specific performance and possession; such a suit is governed by S.7, Cl.10(a) of the Court-fees Act and the delivery of possession is part of specific performance (possession arises from executing the sale deed).	Relied upon by the Court when deciding that delivery of possession is inherently part of specific performance and that the omission of possession in the decree was an accidental omission correctable under S.152. The Court applied this principle to allow amendment.

Court's Reasoning and Analysis

The Court approached the central questions by (a) examining the statutory framework governing appellate dismissals and certified copies (notably Order 41, Rules 11, 17, 18, 32, 35 and 37, and the historic S.551 and S.581 of the 1882 Code and the 1888 amendment) and (b) surveying conflicting High Court decisions across jurisdictions.

Key points of the analysis (as stated in the opinion):

The scheme in the Code provides two procedural modes for disposing of an appeal: dismissal in limine (without notice to the respondent) under O.41 R.11 and dismissal after notice (or fuller hearing) under other rules. The Court emphasized that the difference between these modes lies in procedure (conciseness and expedition) and not in legal essence.
The appellate Court, in either mode, applies its mind to the merits and adjudicates on the rights of parties; a dismissal in limine is therefore an adjudication on merits and constitutes a decree within the meaning of S.2(2), C.P.C. The Court rejected the argument that dismissal in limine is of a different legal character that would make the trial Court's decree remain independently executable.
Historically, S.551 of the pre-1888 Code used the word "confirm" but was amended by Act VII of 1888 to use "dismiss". The Court found no clear legislative intention in that amendment to create a new legal consequence rendering dismissal in limine different in substance from other dismissals. The Court read the amendments as largely phraseological and consistent with the scheme of appellate procedure elsewhere in Order 41.
If the respondents' argument (that the trial court's decree remained the operative decree) were accepted, it would create the anomalous result of two separate decrees (trial and appellate) each independently executable; the Court found no sound principle or statutory warrant for that anomaly.
On precedent, the Court recognized a conflict among High Courts. It surveyed the authorities and concluded that the Madras Full Bench and Division Bench decisions (including ILR 18 Mad 214 and ILR 22 Mad 293) and decisions of Calcutta and Allahabad supported the view that appellate decree supersedes the trial decree and that amendment belongs to the appellate Court. The Court preferred that line over the Bombay, Patna and some Nagpur authorities.
On the question whether the omission was a clerical "accidental slip or omission" correctable under S.152, C.P.C., the Court examined the nature of relief in a suit for specific performance with a claim for possession. Relying on Sundara Ramanujam v. Sivalingam, the Court held that possession is integral to specific performance (possession arises from the grant/execution of the sale deed) and that both rights (sale deed and possession) spring from the same contract. Given that the plaintiff had sought both remedies and succeeded on merits, the omission of possession in the judgments and decree was correctly characterized as an accidental omission correctable under S.152.

Applying these legal principles to the facts before it, the Court concluded that:

The application for amendment is maintainable in the second appeal (i.e., in the appellate Court whose decree dismissed the second appeal in limine), because an appellate dismissal under O.41 R.11 is a decree that supersedes the trial Court decree.
The omission of the relief for possession amounted to an accidental slip or omission within the meaning of S.152, C.P.C.; the Court therefore had power to correct the judgment and decree.
Accordingly, the Court allowed the amendment and ordered costs in favour of the applicant.

Holding and Implications

Holding: AMENDMENT ALLOWED. The Court held that an application to amend a decree (to correct an accidental omission of relief for possession) is maintainable in the second appeal even where the second appeal was dismissed in limine under Order 41, Rule 11, C.P.C.; and that the omission in this case was an accidental slip or omission correctable under Section 152, C.P.C. The applicant's amendment was permitted and costs were awarded to the applicant. C.M.P. No. 897 of 1954 was dismissed as unnecessary.

Implications (direct effect):

The High Court's decree (the dismissal in limine under O.41 R.11) is to be treated as a final appellate decree which supersedes the trial court's decree for the purposes of amendment and correction; therefore, applications to amend such decrees must be considered by the appellate Court.
In this case the judgment and decree were to be amended to include the relief for possession which had been omitted inadvertently; the applicant obtains costs from the respondents.
The opinion expressly adopts the line of authority from the Madras, Calcutta and Allahabad High Courts in preference to the Bombay, Patna and some Nagpur authorities; the Court records its agreement with the Madras Division/Full Bench approach and applies it in concluding that amendment in the second appeal is maintainable.

Note: This summary is limited to the matters stated in the provided opinion. No information beyond the text of the opinion has been added. The opinion itself contains references to multiple dates (e.g., the date the sale deed was obtained appears as 2-7-1952 in one paragraph and 2-7-1951 in another); those chronological variations are reported as they appear in the opinion.

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Judgement

OF REFERENCE

RAMASWAMI, J. : -

This is an application for amendment of the decree of the Court of the first instance in O. S. No. 346 of 1949, District Munsifs Court, Srikakulam.

2. The facts are ; O. S. No. 346 of 1949 was filed for specific performance of an agreement to sell dated 29-2-1949 executed by the 1st defendant therein in favour of the plaintiff and for possession of the plaint schedule property after ejecting the defendants. The 1st respondent before me is stated to have been a subsequent alienee of the suit property under a registered sale deed dated 29-2-1949 with notice of the agreement in favour of the plaintiff. The suit was decreed on 27-3-1950.

On appeal in A. S. No. 120 of 1950, the Subordinate Judge of Srikakulam confirmed the decree passed by the trial Court. The first respondent filed a second appeal and it was dismissed by me at the admission stage on 1-11-1951. The plaintiff is then stated to have applied and obtained public copies of the judgments and decrees of the Courts below and he is stated to have found therefrom that the relief for possession was omitted from the decree inadvertently even though the suit was both for specific performance of the agreement and for possession. Therefore, he filed 1. A. No. 240 of 1951 in the Sub-Court, Srikakulam, for amendment.

The respondents opposed on the ground that the plaintiff was not entitled to possession until the sale deed was executed and that the omission of the relief for possession in the decree was proper. The Subordinate Judge dismissed the application on the ground that the decree was in conformity with the judgment and that the proper remedy was to move the trial Court for amendment of the judgment. Therefore, the plaintiff filed I. A. No. 977 of 1951 in the District Munsifs Court, Srikakulam, for amendment of the decree and judgment and it was opposed by the respondents on similar grounds.

The learned District Munsif dismissed the application on the ground that no separate court-fee had been paid for the relief of possession and therefore no relief could have been given. The plaintiff obtained a sale deed through Court on 2-7-1952. Then he filed O. S. No. 323 of 1952 on the file of the District Munsifs Court, Srikakulam, for possession on the basis of title. The defendants raised the contention that the relief for possession could not be granted on account of the prior judgment wherein it must be deemed to have been refused. The plaintiff is thereupon stated to have sent the records to his counsel at Madras for filing a revision and he is stated to have been advised to file an application for amendment here.

3. The short point for determination is whether on the dismissal of the 2nd appeal under the provisions of O. 41, R. 11, C. P. C. before issue of notice to the respondent, an application for amendment of the decree lies here.

4. There is dearth of authority on this subject and the latest decision of the Madras High Court as known to me and brought to my notice is Subbamma v. Madhavarao, AIR 1946 Mad 492(A). There Horwill, J., held that an order dismissing an appeal in limine under O. 41, R. 11, is a decree within the meaning of S. 2 (2), C. P. C, that it does not make any difference that in such a case notice does not go to the respondent, that such a decree supersedes the decree of the lower Court in the same way as if notice had been issued to the respondent and that an application for amendment of the decree, therefore, lies to the appellate Court and not to the lower Court. The learned Judge relied upon Munisami Naidu v. Munisami Reddi, ILR 22 Mad 293 (B) and did not follow Batuk Prasad Singh v. Ambika Prasad Singh, AIR 1932 Pat 238 : ILR 11 Pat 409 (C).

5. The iearned Judge in paragraph 4 of his judgment states :

Although there is great deal to be said for the argument in AIR 1932 Pat 238 : ILR 11 Pat 409 (C), yet that authority does not seem to me sufficient to warrant my holding that the procedure consistently adopted by this Court is wrong. The above view of the Patna High Court agrees with that held in the Bombay High Court and in Nagpur; but it is not the view of the Calcutta and other High Courts. This Court has, I believe, always presumed, even if it has not decided, that an order dismissing an appeal under O. 41, R. 11 has precisely the same effect as an order dismissing an appeal after notice under R. 32."

The Patna High Courts decision (C) referred to is a Bench decision by Wort and Fazl Ali, JJ. The Judgment of Wort, J., shows that the learned District fudge in that case relied upon Uma Sundari Devi v. Bindu Bashini, ILR 24 Cal 759 (D) and held that it was the High Court and not the District Court which had jurisdiction. Wort, J., has remarked that the learned District Judge could not be blamed for taking this view as the case to which reference has just now been made has been followed in a number of Courts and adds "speaking for myself I prefer the reasoning of the case of Bapu v. Vajir, ILR 21 Bom 548 (E)."

Therefore, he came to the conclusion that the case should be sent back to the learned District Judge and the amendment application should be heard and disposed of by him. Fazl Ali, J.; as he then was, in an elaborate judgment concurred with the conclusion of Wort, J.; and has discussed the language of O. 41, R. 11 and O. 41, R. 32 and the original S. 551 of the Code of Civil Procedure and reviewed ILR 22 Mad 293 (B); ILR 24 Cal 759 (D) and Pichuvayvangar v. Sheshayyangar, ILR 18 Mad 214 (FB) (F), and held that they had not given due effect to the amendment in 1888 and so were obsolete and that the only case in which the result of the amendment was fully appreciated was ILR 21 Bom 548 (E), and that the view expressed in ILR 21 Bom 548 (E), received considerable support from the observations made by the Judicial Committee in Kristo Kinkar v. Burroda Kant, 14 Moo Ind App 465 (PC) (G).

6. Therefore, on this point under consideration which is coming up almost daily, we have a volume of decisions throwing considerable doubt on the conclusion of Horwill, J. which in any event requires further consideration by a Bench.

7. I may add for completeness of information that the view of the Bombay High Court has been shared not only by the High Court of Patna but also by the Chief Court of Oudh and the Judicial Commissioners Court of Nagpur; see Tribeni Prasad v. Mt. Rukmin Devi, AIR 1941 Oudh 251 (H) and Sheolal v. Md. Ismail, AIR 1933 Nag 117 (I).

8. In these circumstances this is a fit matter for being posted before a Bench and the papers may be placed before the Honble the Chief Justice for necessary directions. Notice may be issued to respondent.

ORDER OF THE DIVISION BENCH.

K. SUBBA RAO, C.J. : -

9. This application has been referred to a Division Bench by Ramaswamy, J., of the Madras High Court. After the formation of the Andhra High Court, the application was transferred to this Court.

10. The facts giving rise to this application may be briefly stated. The applicant filed O. S. No. 346 of 1949 on the file of the Court of the District Munsif, Srikakulam, for specific performance of an agreement to sell dated 29-2-1949 executed by the 2nd respondent for himself and as guardian of the 3rd respondent in his favour and for possession of the plaint schedule property after ejecting the defendants therefrom. Subsequently, the 2nd respondent alienated the suit property in favour of the 1st respondent, who had notice of the agreement in favour of the applicant under a registered sale deed dated 29-2-49.

The suit was decreed on 27-3-1950. The decree directed the respondents to execute a sale deed in favour of the applicant in respect of the properties agreed to be sold to him subject to the condition, that the applicant should deposit into Court a sum of Rs. 1,100/- on or before 10-4-1950. The 1st respondent preferred an appeal against the decree of the District Munsif to the Court of the Subordinate Judge, Srikakulam, being A. S. No. 120-of 1950.

The applicant filed cross-objections questioning the correctness of the amount directed to be deposited by him in Court as a condition for the execution of the sale deed in his favour. The appeal as well as the cross-objections were dismissed by the Subordinate Judge by judgment and decree dated 5-3-1951. The 1st respondent preferred a second appeal to the High Court of Madras against the decree of the learned Subordinate Judge.

The Second Appeal was dismissed by the High Court on 1-11-1951 at the admission stage under O. 41, R. 11, C. P. C. Thereafter, it is alleged that the applicant applied for and obtained public copies of the judgment and decree of the Courts below and found therefrom that the relief for possession was omitted from the decree inadvertently. On discovering the alleged omission, he filed I. A. No. 240 of 1951 on the file of the Subordinate Judges Court, Srikakulam, for amendment of the decree by including therein a relief for possession.

The learned Subordinate Judge, Srikakulam, dismissed the application on the ground that, as the decree was in accordance with the judgment, the proper remedy was for the applicant to move the trial Court for amendment of the decree of the trial Court. The applicant then filed I. A. No. 977 of 1951 on the file of the Court of the District Munsif, Srikakulam, for amendment of the judgment and decree in O. S. No. 346 of 1949 by inclusion of the relief for possession.

The District Munsif dismissed that application mainly on the ground that as no separate fee was paid on the relief for possession, no decree for possession could have been given in the suit. Thereafter, after obtaining the sale deed through Court on 2-7-1951, the applicant filed O. S. No. 323 of 1951, on the file of the Court of the District Munsif, Srikakulam, for possession of the property on the basis of his title. The respondents raised the contention in that suit that the relief for possession, which the applicant asked for in the plaint in the previous suit was not granted by the judgment and decree therein and must be deemed to have been refused and therefore a fresh suit was not maintainable.

In the aforesaid circumstances, the present application for amendment of the judgment and decree in O. S. No. 346 of 1949 as affirmed by the High Court in the Second Appeal by including therein a relief for possession of the plaint schedule property was filed. The applicant alleges that the omission to give relief for possession both in the judgment as well as in the decree as affirmed by the High Court was due to an accidental omission, and, therefore, this Court should amend the judgment as well as the decree so as to include the relief for possession therein.

11. The 1st respondent contends that the decree is in accordance with the judgment and, therefore, the proper course is to get the judgment reviewed and not to file an application for its amendment, that the application for amendment is not maintainable in the High Court but should have been filed in the Court of the Subordinate Judge and that, in any view, the applicant was guilty of laches and, therefore, he is not entitled to have a discretionary remedy so many years after the alleged omission was made by the District Munsif.

12. The first question is whether the application for amendment is maintainable in the Second Appeal or should have been filed in the Subordinate Court. Learned Counsel for the respondents contends that, as the High Court dismissed the Second Appeal in limine under O. 41, R. 11, C. P. C. without giving notice to the respondents, the decree of the High Court is not one of confirmation, that the final operative decree was that of the subordinate Court made in the first appeal and, therefore, if there was any accidental omission, the application should have been filed to get the judgment and decree of the subordinate Court amended. To appreciate this argument, it is necessary to notice the relevant provisions of the Civil Procedure Code with their historical background. The present provision of the Civil Procedure Code conferring power upon the appellate Court to dismiss an appeal without giving notice to the respondent is O. 41, R. 11, C. P. C. It reads :

"(1) The appellate Court, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader.

XX XX XX XX

(3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred."

13. Order 41, R. 37, C. P. C. prescribes a procedure for sending a copy of the judgment and decree to the original Court. Under that provision, a copy of the judgment and of the decree, certified by the Appellate Court or such officer as it appoints in this behalf, shall be sent to the Court which passed the decree appealed from and shall be filed with the original proceedings in the suit, and an entry of the judgment of the appellate Court shall be made in the register of civil suits. The corresponding section in the old Code of 1882 for the former is S. 551 and for the latter is S. 581. Section 551 of the Code of 1882 was in the following terms :

"Section 551 : (1) The Appellate Court, if it thinks fit may, after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, dismiss the appeal without sending notice of the appeal to Court against whose decree the appeal is made and without serving notice on the respondent or his pleader,

XX XX XX XX

(3) The dismissal of an appeal under this section shall be notified to the Court against whose decree the appeal is made."

section 581 of the old code runs thus :

"A copy of the judgment and of the decree, certified by the Appellate Court or such officer as it appoints in this behalf, shall be sent to the Court which passed the decree appealed against and shall be filed with the original proceedings in the suit and an entry of the judgment of the Appellate Court shall be made in register of civil suits."

14. It will be noticed that there is no appreciable difference between the aforesaid provisions of the old and the new Codes so far as they are material to the question raised before us. Section 551 of the Civil Procedure Code of 1882 was the result of an amendment and the section before the amendment stood thus :

"The appellate Court may if it thinks fit after fixing a time for hearing the appellant or his pleader and hearing him accordingly if he appears at such time confirm the decision of the Court against whose decree the appeal is made without sending notice of the appeal to such Court and without serving notice on the respondent or his pleader; but in such case, the confirmation shall be notified to the same Court."

This section was amended by the Civil Procedure Code Amending (7 of 1888) by substituting the words dismiss the appeal for the words confirm the decision of the Court against whose decree the appeal is made.

15. The aforesaid provisions provide two modes for the disposal of an appeal. They were conceived for the expeditious disposal of frivolous appeals without giving notice to the respondent and causing him unnecessary trouble and expense and for the decision of arguable appeals after giving notice to the respondent and giving him an opportunity to support the decision of the trial Court. The difference between the two modes lies only in the manner of disposal but not in the essence.

In either case, the appellate Court considers the questions of law and the evidence arising in the appeal and in one case dismisses the appeal in limine as in its view no case is made to hear the respondent to sustain the judgment of the trial Court and in the other finds some arguable point of either fact or law which requires to be elucidated by the respondent. In both the cases, the appeal may be dismissed. But in the former case as the respondent is not heard the decree of the trial Court cannot be modified or varied.

In other respects, whether the dismissal is in limine or after hearing the respondents, the dismissal is on merits. The appellate Court applies its mind, comes to the conclusion that the judgment of the trial Court is correct and, therefore, dismisses the appeal. In the case of an appeal, unlike that in the case of a revision, the aggrieved party has a right and the Court cannot, in its discretion, dismiss the appeal if, in its opinion, the decree of the trial Court is wrong.

We cannot, therefore, see any justification for the argument that there is a difference in essence between a judgment dismissing an appeal under O. 41, R. 11, C. P. C. or that made under O. 41, R. 37, C. P. C. In both the cases, the judgment of the appellate Court adjudicate 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.

16. The amendment of S. 551 of the Code of 1882 in 1888 by substituting the word "dismissed for the word confirmation, the argument proceeds, brings out the intention of the legislature to make a distinction between the two categories of disposals, with different legal consequences flowing from them. We cannot derive any such clear intention from the amendment. The amendment may well have been made more for perfection of phraseology rather than change in law and to bring that phraseology in conformity with the other relevant provisions of the Civil Procedure Code.

Indeed, a scrutiny of the provisions of the Civil Procedure Code dealing with the disposal of an appeal after notice was ordered by the appellate Court discloses that the legislature has not used the word confirmation even in the case of the dismissal of an appeal after such notice. Order 41 Rule 17 empowers the Court to dismiss the appeal if the appellant does not appear at the time fixed for the hearing. Under Order 41 Rule 18, the Court dismisses the appeal if the appellant does not deposit the sum required to defray the costs of serving notice on the respondent.

Order 41 Rule 81 prescribes the contents of a judgment and under clause (d) thereof the judgment shall state where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. The word "confirming" for the first time appears in O. 41 R. 32. It says that the judgment may be for confirming, varying or reversing the decree from which the appeal is preferred. As that rule is describing the effect of the appellate judgment on the first courts judgment, three modes of disposal are given in that rule.

Order 41 R. 35 gives the contents of a decree and particularly enjoins on the court to give a clear specification of the relief granted or other adjudication made. Under O. 41, O. 37, a copy of the judgment and of the decree certified by the appellate court or such officer as it appoints in this behalf shall be sent to the Court which passed the decree appealed from and shall be filed with the original proceedings in the suit and an entry of the judgment of the Appellate Court shall be made in the register of civil suits.

17. It will be seen from the aforesaid provisions that a simple procedure is prescribed in the case of disposal of an appeal in limine, whereas a more elaborate procedure is provided in the case of a disposal after hearing the parties. Where the appellate Court agrees with the first Court, the appeal is dismissed without hearing the parties or after hearing the parties. The provisions do not lay down a different category of disposal such as confirming as distinguished from dismissal.

It cannot be said and, indeed it is not suggested that if an Appellate Court confirms the decree of the lower court after notice is ordered, the effect of that order is not dismissal of the appeal. We, therefore, hold that the amendment of S. 551 was not intended to give a different legal effect to the dismissal of an appeal under that section different from that of dismissal of an appeal after hearing the respondent.

18. If the argument of the learned counsel for the respondents be accepted, it would lead to an anomaly which should be avoided unless express provisions of the Civil Procedure Code sustain it. The dismissal of an appeal in limine is certainly the formal expression of an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the appeal. It is, therefore, a decree as defined under S. 2(2), C. P. C.

It is common-place that the decree of the trial Court merges with that of the appellate Court. But if the respondents contention is accepted, there will be two decrees, one that of the appellate court and the other that of the trial Court. Each by force of law can be executed. There is no acceptable reason or principle why the legislature intended to have this consequence.

The only reason that can be suggested is that the respondent may have had no notice of the appeal and, therefore, the appellate decree may be ignored.

The non-issue of notice to the respondent may be a ground for holding that any decree made against him is not binding on him but it cannot efface the legal effect of a valid decree made by the appellate Court. If, as we have held, the appellate decree is the final decree and the decree of the lower court merges with it, it fellows that the application for amendment of the decree should be made to the appellate Court.

That was the view expressed by the Full Bench of the Madras High Court as early as in ILR 18 Mad 214 (F). There, the District Court modified the decree of the District Munsifs Court. An application was made to the District Court for binding the decree in conformity with the judgment. The Full Bench held that, as there has been an appeal against the decree of the District Munsif and a decree has been passed thereon, the District Munsif had no longer any power to amend his decree.

19. The Full Bench decision was applied by a Division Bench of the Madras High Court in ILR 22 Mad 293 (B) to a case where the appellate Court dismissed an appeal under S. 551, C.P.C. The learned Judges held that the terms of ILR 18 Mad 214 (F) were general and, in their opinion, it applied equally to second appeals tried after notice to the respondent.

It may be mentioned that this judgment was given on the basis of S. 551 C. P. C. after it was amended by Act VII of 1888. Indeed, the learned Judges expressly referred to the decision of the Bombay High Court in ILR 21 Bom 548 (E), wherein the learned Judges took a different view on the foot of the aforesaid amendment. This judgment has never been dissented from by the Madras High Court and has stood the test of time. Apart from the fact that it is binding on us, we do not see any justification to differ from it.

20. Horwill J., followed the Bench decision in AIR 1946 Mad 492 (A). The learned Judge pointed out at page 493 that the procedure in the Madras High Court has been throughout uniform and was not changed when the present Code of Civil Procedure was drawn up and that, when an appeal is dismissed under O. 41, R. 11, a decree is drawn up in precisely the same form as when it is dismissed after notice except that necessarily there is no reference to any advocate appearing for the respondent and no mention of costs.

21. The law of the Madras State, both on authority and on practice for a period of over half a century, has been in support of the applicants contention. Unless there are compelling reasons which we find none in this case, we do not see any justification to deviate from the trodden path.

22. There is a conflict of decisions between different High Courts. The decisions of the Patna and Bombay High Courts differ from those of the Madras High Court, whereas the decisions of the Calcutta and Allahabad High Courts are in a line with those of the Madras High Court. In Nagpur, there is difference of opinion. See ILR 24 Cal 759 (D); Hussain Sab v. Sitaram Vigneshwar, AIR 1953 Bom 122 (J); ILR 11 Pat 409 : (AIR 1932 Pat 238) (C); Jamuna Prasad Rai v. Rajballam Rai, AIR 1937 Pat 349 (K); Asma Bibi v. Ahmed Hussain, ILR 30 All 290 (L); Mt. Silarbi v. Mahadu Dhangar, AIR 1920 Nag 80 (1) (M) and AIR 1933 Nag 117 (I).

23. For the reasons given supra, with great respect, we agree with the view expressed by the Madras, Calcutta and Allahabad High Courts in preference to that expressed by the Bombay, Patna and Nagpur High Courts. It is not necessary to consider the decisions taking the different view in detail as we do not see any justification to differ from the decision of the Madras High Court, which, being a decision of a Division Bench, is binding on us. It follows that an application to amend the decree is maintainable in the Second Appeal.

24. Even so, it is contended that the application should have been for reviewing the judgment as well as the decree, as it is said that the decree is in accordance with the judgment and what is in effect and substance asked for is to review the judgment, which denied the applicant the relief of possession. The application was filed under S. 152, Cr. P. C. which reads :

"Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties."

The simple question is whether the error, which is now sought to be rectified, arose from an accidental slip or omission. From the statement of facts, it is seen that the suit was for specific performance of an agreement to sell and for possession. In such a suit, delivery of possession is part of the specific performance of the contract of sale.

25. In the context of court-fees, a Division Bench of the Madras High Court in Sundara Ramanujam v. Sivalingam, ILR 47 Mad 150 : (AIR 1924 Mad 360) (N), considered the scope of a suit for specific performance of an agreement to sell and for possession and held that such a suit was governed by S. 7, Cl. 10 (a) of the Court-fees Act and that it does not become a suit for possession as described in S. 7, Cl. (v) (e) by reason of the addition of the prayer for possession. At page 152 (of ILR Mad) : (at p. 361 of AIR), the learned Judge observed :

"The relief by way of giving possession arises from the relief granting the execution and delivery of the sale deed, as without a registered sale deed, title cannot be transferred under the Transfer of Property Act where the value is over Rs. 100/-. Without the latter relief being granted, the former cannot. Nevertheless, both the rights, viz.; the right to the sale deed and the right to possession spring out of the same contract though one necessarily precedes the other. The delivery of possession is a part of the specific performance of a con-tract of sale unless the terms thereof show that the vendee was not under an obligation to deliver possession. The claim for delivery of possession is as much a part of specific performance as the claim for the payment of the price is, when the seller brings the suit for specific performance."

26. The applicant admittedly paid court-fee under S. 7, Cl. (x) (a) of the Court-fees Act and asked for specific performance of the agreement to sell and for possession. By an accidental omission, though the applicant succeeded on merits, the relief for possession was neither given in the judgment nor in the decree of the first Court. Both the parties preferred appeals to the Subordinate Judges Court, the respondents contending that the decree giving relief for specific performance should be vacated and the applicant pleading that the amount directed to be deposited by him as a condition precedent should be reduced.

The appeal as well as the memorandum of cross-objections were dismissed and the decree of the first Court was confirmed. The Second Appeal filed was also dismissed in limine. It was never the contention of the respondents at any of the stages, of this protracted litigation that, though the applicant was entitled to get a relief directing them to execute a sale deed, he had no right to be put in possession. Both the reliefs were interconnected and they flow from the same right i.e.; the right of the applicant to have the agreement specifically enforced against the respondents.

The accidental omission was discovered at the time of execution and thereafter the applicant filed the application for amendment of the decree in the lower appellate Court, which, alter remand, was dismissed by the District Munsif. In the circumstances, the present application is only to correct an accidental omission made in the judgment as well as in "the decree and S. 152, C. P. C. empowers the Court to correct the mistake. We, therefore, allow the amendment. The applicant will have his costs from the respondents.

27. C. M. P. No. 897 of 1954 is dismissed as unnecessary.

Amendment allowed.