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Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Bhole, J.
Acts
  • s. 55(4)(b) of the Transfer of Property Act
  • s. 55(4) of the Transfer of Property Act
  • s. 55 of the Transfer of Property Act.
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Bhole, J.
Acts
  • s. 55(4)(b) of the Transfer of Property Act
  • s. 55(4) of the Transfer of Property Act
  • s. 55 of the Transfer of Property Act.
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Smart Summary

Judgment Summary — Bhole, J.

Factual and Procedural Background

The plaintiffs sued in 1963 for recovery of a sum (stated variously as Rs. 6,136 and ultimately Rs. 5,668 / Rs. 5,200 in parts of the judgment) and also claimed a vendor's charge on a field they had sold to the defendant on 29 October 1958 for Rs. 5,500 (Rs. 300 paid as earnest). Under the sale agreement the buyer was to pay the balance by annual instalments of Rs. 1,300 commencing 15 February 1960 and ending 15 February 1963. The defendant failed to pay instalments and the plaintiffs sued for the unpaid price and for a charge on the field.

The trial Court dismissed the plaintiffs' suit. The plaintiffs appealed to the District Court (before the learned Assistant Judge, Mr. Wankhede), who allowed the appeal and passed a decree in their favour. In drawing the formal decree an omission occurred: the decree as drawn did not expressly state that the decretal amount was to be a charge on the field, although the judgment's observations indicated entitlement to unpaid purchase money and interest and discussed the vendor's charge under s.55 of the Transfer of Property Act. The plaintiffs applied under sections 151 and 152 of the Civil Procedure Code to have the decree amended to show that the decretal amount is a charge on the property. The Extra-Assistant Judge allowed that application and ordered amendment. The defendant (original buyer) filed this revision challenging that amendment order. The present opinion disposes of that revision application.

Legal Issues Presented

  1. Whether the appellate court (the learned Extra-Assistant Judge) had jurisdiction to amend the decree under section 152 of the Civil Procedure Code to include a vendor's charge when the drawn decree omitted that relief.
  2. Whether the court could in the alternative or additionally exercise inherent powers under section 151 of the Civil Procedure Code to amend the decree to conform with its judgment.
  3. Whether the omission in the drawn decree amounted to a clerical or accidental slip or omission that can be corrected under section 152, and whether the test for amendment is whether the drawn decree reflects the intention of the judge expressed in the judgment.

Arguments of the Parties

Applicant (original defendant / revision petitioner)

  • Contended the Extra-Assistant Judge had no jurisdiction to amend the decree under s.152, because in the appeal the plaintiffs did not ask for the charge on the property and the point was not raised in the appeal; therefore the appellate judge did not give a finding on that point.
  • Argued that because the charge claim was not pursued or decided in the appeal, amendment to introduce that relief was improper.

Opponents (plaintiffs / respondents in the revision)

  • Contended the order amending the decree was legal: since the appellate court allowed the appeal and set aside the trial Court's dismissal, it must be inferred that the appellate court granted the reliefs sought in the suit, which included the charge on the property.
  • Sought to rely on the appellate judgment's observations (including references to s.55 of the Transfer of Property Act) as demonstrating the judge's intention to grant the charge relief, making the drawn decree defective for omission.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court's analysis proceeds from statutory definitions and the nature of decrees to the statutory correction powers invoked by the plaintiffs' application.

1. Nature of the powers invoked:

  • Section 151 (CPC): preserves the inherent power of the Court to make orders necessary for ends of justice or to prevent abuse of the process of the Court. Under this section the Court may, in the interests of justice, pass orders correcting a decree unless prohibited by statute.
  • Section 152 (CPC): authorises correction at any time of clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising from accidental slip or omission, either on the Court's own motion or on application by a party.

2. What a decree must do:

  • The court refers to s.2(2) CPC to note that a "decree" is the formal expression of an adjudication and must, so far as the Court expressing it is concerned, conclusively determine rights in controversy.
  • Order XX, rule 6 CPC requires that the decree shall agree with the judgment and shall specify clearly the reliefs granted or other determination of the suit; therefore the decree must be a self-contained reflection of the judgment and the reliefs actually adjudicated.

3. Application of these principles to the facts:

  • The plaintiffs' suit originally sought both recovery of unpaid price and a vendor's charge on the field. The trial Court dismissed the suit; the appellate court allowed the appeal and in its concluding order decreed recovery of a specific sum with interest, costs, and other incidental directions. During the appellate judgment the judge observed on entitlement under s.55(4)(b) and s.55(4) of the Transfer of Property Act to recover unpaid purchase money and to a charge on the field.
  • The drawn decree omitted reference to the charge on the property despite the appellate judgment's observations. The court treats this omission as an error to be tested against the judgment's evident intention: whether the decree as drawn represents the intention of the judge who made the judgment.
  • Under s.152 the court may correct clerical or accidental slips or omissions so that the decree conforms to the adjudication in the judgment. The judge exercising amendment power does no more than what the officer charged with drawing the decree ought to have done to make it conform to the judgment. The amendment will not be permitted if it is not in furtherance of the judgment.
  • Therefore, because the appellate judgment's substance and specific observations showed that the plaintiffs were entitled not only to the monetary recovery but also to the charge, and because the decree as drawn failed to reflect that adjudication, amendment under s.152 was appropriate to harmonise the decree with the judgment.
  • Separately, the court notes that even if s.152 were not sufficient or applicable, the appellate judge could have invoked the inherent power under s.151 to correct the decree in the interests of justice, to give effect to the judgment.

4. Concluding analytical point:

The controlling test adopted by the court is whether the drawn decree reflects the adjudicatory intention of the judge expressed in the judgment; where it does not because of an accidental omission, correction is permitted under s.152 (and, if necessary, under s.151) so long as the amendment is in furtherance of the judgment.

Holding and Implications

Holding: The revision application is dismissed. The Extra-Assistant Judge's order allowing the plaintiffs' application to amend the decree to state that the decretal amount shall be a charge on the field is upheld. The application is dismissed with costs.

Implications:

  • Direct effect on the parties: The amendment permitting the decretal amount to be a charge on the property stands; the plaintiffs' right to have the decretal amount declared a charge on the field, as reflected in the appellate judgment, may be enforced consistent with that amendment. The revision by the defendant challenging that amendment fails and costs are awarded against the defendant in the revision proceeding.
  • The court did not state that this decision establishes any new legal precedent beyond applying established statutory correction powers (ss.151 and 152 CPC) and the principle that a decree must conform to the judgment and reflect the judge's intention; no distinct new rule of law is announced.

Disposition in the opinion: "Application dismissed." (Order upheld; costs awarded.)

Show full summary ...

    Namdeo Amrut Gohane v. Narayan Shamrao Deshmukh

    Bhole, J.:— The defendant has filed this revision application being aggrieved by the judgment passed by the Extra-Assistant Judge, Shri Wankhede, in a miscellaneous civil application, which was decided by him. He allowed that application of the plaintiffs ordering that the decree should be amended indicating that the decretal amount shall also be a charge on the suit filed.

    2. The plaintiffs had filed a suit in the year 1963 for recovery of a sum of Rs. 6,136 and also for a charge on the suit field for this sum. Their complaint was that they had sold a field to the defendant on October 29, 1958 for Rs. 5,500. A sum of Rs. 300 was paid on that day as earnest money by the defendant. Under the agreement, the defendant was to pay the balance of consideration by instalments.

    3. He was to pay the first instalment of a sum of Rs. 1,300 on February 15, 1960 and to go on paying Rs. 1,300 every year till the last instalment on February 15, 1963. Because he had not paid any instalment, the plaintiffs had filed this suit for the unpaid price of the field. The trial Court dismissed the plaintiffs' suit. Therefore, they went in appeal before the District Court, Nagpur.

    4. The plaintiffs succeeded in appeal and the learned Assistant Judge (Mr. Wankhede) who decided the appeal passed a decree in their favour. It, however, appears that there was an omission in the decree drawn regarding the charge on the field which was the subject-matter of the sale and on account of which the unpaid amount was not paid. The plaintiffs had, therefore, applied under ss. 151 and 152 of the Civil Procedure Code stating that they had filed a suit not only for the recovery of an unpaid price but also claimed a charge decree on the property. Their contention in the application was that the appellate Court had allowed the appeal and decreed the suit but the decree drawn up did not mention that the decretal amount would be a charge on the property in suit. According to them, this mistake in the decree drawn was accidental and therefore required to be corrected. Their complaint was that the defendant had no other property and it would be impossible to recover the sum unless it is charged on the property. They are entitled to a charge under s. 55 of the Transfer of Property Act. They, therefore, sought an amendment of the decree by this application. The defendant opposed the amendment. The learned Extra-Assistant Judge after considering the matter allowed the application and ordered that the decree should be amended saying that the decretal amount shall be a charge on the field in suit. This order is now challenged by the original defendant.

    5. The learned advocate for the applicant contends here that the learned Extra-Assistant Judge had no jurisdiction to pass an order amending the decree under s. 152 of the Civil Procedure Code especially when the plaintiffs in their appeal against dismissal of their suit before the District Court did not ask for the charge on the property which was the subject-matter of the sale. According to him, this point was never raised in the appeal and the learned Extra-Assistant Judge, therefore, in that appeal did not even give a finding. Therefore, he contends that the learned Extra-Assistant Judge was in error when he passed the order that the decree should be amended. On the other hand, the learned advocate for the opponents here contends that the learned Extra-Assistant Judge's order is quite legal and proper, because he set aside the decree passed by the trial Court dismissing his suit, that the learned Extra-Assistant Judge allowed their appeal and that, therefore, it must be reasonably inferred that he allowed the reliefs that were asked for in the suit. The relief asked for in the suit was not only the recovery of the sum but also the charge on the property. The learned advocate for the opponents, therefore, says that the order of the learned Extra-Assistant Judge amending the decree is quite legal and proper.

    6. Now the application on which the learned Extra-Assistant Judge has passed the order and which order is challenged here is not only under s. 151 but also under s. 152 of the Civil Procedure Code. Under s. 151 nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court. Therefore, under this section the Court, in a given case, and in the interests of justice, can pass an order even correcting the decree unless it is prohibited or excluded by the Code or other statutes. Under s. 152 any 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. Therefore, where there has been a clerical or arithmetical mistake or an error arising; from an accidental slip or omission, the Court can amend or vary a decree. We will, therefore, have to see whether the decree which was drawn up after the judgment of the learned Extra-Assistant Judge allowing the appeal of the plaintiffs was according to the adjudication in the judgment.

    7. Admittedly, the plaintiffs have filed the suit not only for the recovery of the unpaid price but also claimed the unpaid vendor's charge. These are the reliefs which the plaintiffs asked for in the suit. The trial Court dismissed this suit. The plaintiffs, therefore, filed an appeal against the dismissal of their suit. The learned Extra-Assistant Judge allowed the appeal and set aside the decree of the trial Court. In the concluding part of the order, he ordered and decreed that the respondent before him (i.e the defendant) do pay a sum of Rs. 5,668 to the appellant and that the decretal amount shall carry interest at the rate of 4 per cent\ per annum from the date of the suit until the date of realization; that the respondent shall pay the costs of the claim decreed to the appellants in that appeal and in the lower Court and shall also bear his own costs throughout. Further, the appellants were ordered to pay the costs of the respondent on the claim dismissed in that appeal and the lower Court and to bear their own costs throughout. There were some other incidental observations. The learned Extra-Assistant Judge appears to have omitted to mention regarding the claim of the appellants (plaintiffs) in so far as they wanted a charge on the property. It is because of this omission that the decree appeared to have been drawn according to the observations of the learned Extra-Assistant Judge in the concluding part of his judgment. The point, therefore, that arises here is to see whether the decree as drawn reflects the intention of the learned Extra-Assistant-Judge and the adjudication in the appellate judgment passed by him. The learned Extra-Assistant Judge has observed during the course of his order allowing the amendment, which is challenged here that he observed in para. 13 of the judgment in appeal that under s. 55(4)(b) of the Transfer of Property Act the seller was entitled to the amount of purchase money or any part thereof which remained unpaid and for interest on such amount or part from the date on which possession has been delivered. He also observed in the appellate judgment that the appellants (opponents here) were entitled to recover a sum of Rs. 5,200 as well as the interest. The learned Extra-Assistant Judge in this order mentions that under s. 55(4) of the Transfer of Property Act the seller is always entitled to a charge on the field which is sold to the buyer. After mentioning certain parts of the appellate judgment, the learned Extra-Assistant Judge came to the conclusion that his intention according to the appellate judgment was to pass a decree according to the claim of the plaintiffs as regards the charge.

    8. Now, under s. 2(2) of the Civil Procedure Code “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. I mentioned only the relevant portion of the same. Therefore, a decree is merely a formal expression of an adjudication. In other words, the decree though formal must reflect all the adjudication by the Court. Under O. XX, r. 6 of the Civil Procedure Code, the decree shall agree with the judgment; it shall contain the number of the suit, the names and description of the parties, and particulars of the claim, and shall specify clearly the reliefs granted or other determination of the suit. Therefore, the decree should be drawn up in such a way as to make it self-contained and as to make it a reflection of all the important reliefs given by the judgment. In so far as the facts of our case are concerned, the plaintiffs, admittedly, asked for a charge on the field in suit. Their suit was dismissed and, therefore, they filed an appeal to the District Court. The learned Extra-Assistant Judge allowed the appeal after setting aside the dismissal of the suit. During the course of the judgment, he also observed regarding the relief of charge which the plaintiffs claimed. When therefore he allowed the appeal, it means that he not only allowed the claim of the appellants to recover the sum but also allowed their claim in so far as they wanted a charge on the property. By this appellate judgment, therefore, the learned Extra-Assistant Judge granted the relief sought by the plaintiffs. But it appears that it was omitted in the decree drawn. The point, therefore, that arises here for consideration is whether the learned Assistant Judge under s. 152 of the Civil Procedure Code could allow such amendment. In my view, such an amendment could be allowed under s. 152 also. As this decree did not conform to the judgment intended to be enforced by it, that decree could certainly be amended to bring it in conformity with the intention that was expressed in the judgment. In exercising the power of amendment the Court does, under s. 152 of the Civil Procedure Code, not more than what would have been done by it or by the officer concerned of the Court or the officer performing his original duty of seeing that the decree is in conformity with the intention expressed in the judgment. The amendment, of course, will not be allowed if it is not in furtherance of the judgment. As the object of an amendment is to harmonies the decree with the judgment sought to be enforced by it, the test for deciding whether an amendment should be allowed or should not be allowed is whether the decree represents the intention of the Judge who made it. It appears to me therefore that in the furtherance of justice it was very necessary for the learned Assistant Judge to allow the application of the plaintiffs for amending the decree as was sought for.

    9. Even otherwise under s. 151 of the Civil Procedure Code, the appellate Judge could allow that application for amending the decree if in the interests of justice he has to make the decree in conformity with the judgment. He has no other alternative but to exercise even if necessary his powers under s. 151 of the Civil Procedure Code. In this view of the matter, therefore, I cannot entertain the application of the applicant.

    10. This application, therefore, is dismissed with costs.

    11. Application dismissed.

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    Comments

    Namdeo Amrut Gohane v. Narayan Shamrao Deshmukh
    (Feb 6, 1970)