1. This is an application for amendment of the decree passed in Second Appeal No. 1568 of 1923 by the late learned Chief Justice. The second appeal was disposed of on 24th March 1926 and it was dismissed with costs. The appellants in the second appeal were defendants 2, 3 and 4. The original suit was for recovering possession of certain properties with past profits, Rs. 60 and future profits at the rate of Rs. 60 per year.
2. The first Court dismissed the suit on the merits. On plaintiffs' appeal to the District Court of Chingleput, the District Judge reversed the District Munsif's decree and on 20th November 1922 gave judgment in favour of the plaintiffs. Para. 20 of the lower appellate Court's judgment is relevant to the points that I am now considering:
Therefore 1 reverse both decrees of the lower Court and in O.S. No. 346 of 1919. I give plaintiff the decree sought for with possession and Rs. 60 mesne profits as deposed to by P.W. 1 and subsequent profits at the same rate till delivery.
3. As I said, the second appeal preferred by the defendants against that decision of the learned District Judge was dismissed by the High Court on 24th March 1926. The decree drawn up in the lower appellate Court gave the plaintiffs possession of land and also Rs. 60 for past mesne profits, but with reference to future mesne profits this is what the decree contained:
That defendants 2 to 4 (respondents) do pay to plaintiffs (appellants) Rs. 60 for past mesne profits and also future mesne profits at Rs. 60 a year from this day till delivery of possession.
4. The discrepancy between the judgment and the decree was not noticed and when the second appeal came on for hearing, this matter was not mentioned to the Court, After the second appeal was disposed of, the plaintiffs decree-holders applied to the lower appellate Court on 16th March 1927 to bring the decree of the lower appellate Court in accordance, with its judgment by mentioning in the lower appellate Court's decree that the plaintiffs were to have mesne profits not from the date of the lower appellate Court's judgment, but from the date of the plaint. The learned District Judge who heard that application held, and I think quite rightly, that after his decree had been confirmed in second appeal by the High Court, the District Court had no longer any jurisdiction to pass any orders amending its decree. The decision of the Full Bench of this Court in Piohuvayyangar v. Seshayyangar [1895] 18 Mad. 214 is clear authority for the position that after the lower appellate Court's decree had been confirmed by the High Court in second appeal, the jurisdiction of the lower appellate Court to amend its decree ceased. The District Judge accordingly dismissed that application with costs on 14th November 1927. The plaintiffs decree-holders subsequently applied to the High Court on 13th February 1928 for having the decree amended and brought in accordance with the judgment. The application came on for orders before the late learned Chief Justice who disposed of the second appeal, and his Lordship directed notice to issue on 15th March 1928 and subsequently on 4th March 1929 when the application came on before him for hearing, he gave the respondents two weeks time for filing a counter. A counter has been filed by the respondents on 15th March 1929. The purport of the counter is that the amount due to the decree-holders under the lower appellate Court's decree had been paid in full and the decree-holder had given a receipt for having received the whole amount due under the decree of the lower appellate Court. Though the receipt has not been filed along with the counter affidavit in this Court, there could not be any dispute as regards the fact that the decree-holders received the full amount due under the decree of the lower appellate Court and granted a receipt to the judgment-debtors to the effect that they had received all amounts due to them under the lower appellate Court's decree.
5. In these circumstances it is contended by the learned advocate who appeared for the counter petitioners-defendants, before me that this Court has no jurisdiction to pass orders amending the decree to bring it in accordance with the judgment. He quoted the cases in Munuswamy Pillay v. Mahdi Hussain Khan A.I.R. 1926 Mad. 516 and Pathambi v. Mytheen Bibi [1902] 12 M.L.J. 96, decided by this Court and a case in Pitam Lal v. Balwant Singh A.I.R. 1925 All. 556 decided by the Allahabad High Court. In the first two cases cited by the learned advocate for the respondents, there had been satisfaction entered by order of Court of the decree and it was held that without vacating the order entering satisfaction it was not open to the decree-holder to apply to amend the decree. In the case before me, it is not the defendant's case that any such satisfaction had been entered by order of Court so far as the decree of the lower appellate Court was concerned. Further the defendant's right to apply for such an order has become barred by limitation. That being so, the reasoning of those decisions does not exist in this case. In the case in A.I.R. 1925 All. 556, one learned Judge of the Allahabad High Court, Daniels, J. notices this point in his judgment. This is what his Lordship says:
I would be prepared to go a step further and hold that when a decree for money had been finally satisfied and discharged, the Court is functus officio and can no longer entertain an application for amendment under Section 152, Civil P.C.
6. If the learned Judge intended to proceed further than was laid down by the Madras High Court in the two cases noted by me, namely, that in case where there had been orders recording satisfaction, the decree-holder is not entitled to apply for amendment of the decree without taking steps to vacate such orders, then with all respect, I think the learned Judge's proposition probably goes too far. The moment a decree for money is passed it is open to the judgment-debtor to pay the money into Court, say, the day after the decree is passed. That does not mean that by so doing he disentitles the decree-holder from applying to the Court for amending the decree if the decree should be not in accordance with the judgment. Again, after such payment it would be clearly' open to the decree-holder to file an appeal against the lower appellate Court's decree if the decree-holder wanted to get further relief in addition to relief granted by the lower Court's decree. If an appeal is not prohibited in such circumstances, I fail to see why the decree-holder is not entitled to have recourse to the other remedy, namely, applying to the Court to bring the decree in accordance with the judgment. Again in the case before me, the decree that is now sought to be amended is not the decree of the lower appellate Court, the receipt of the amount due under which was acknowledged by the decree-holder. The final decree is that passed by the High Court in second appeal on 24th March 1926 and it is the High Court's decree that is now sought to be amended. It is not pretended that after the High Court's decree was passed, any moneys were paid by the judgment-debtors to the decree-holders, nor that any orders of satisfaction were passed with reference to the same after the judgment and the decree of the High Court. It therefore seems to me that in an ordinary case where there is a discrepancy between the decree and the judgment and the decree-holder accepts payment of the amount due under the decree, he is not by that circumstance alone, dobaried from taking proper steps to have the decree brought in accordance with the judgment. It may be that there are special circumstances proved in any particular case which might probably disentitle him to such relief. inordinate delay might be one of such circumstances, and it is possible there are others also. In the absence of any such circumstances, the mere fact that the decree-holders have received the amount due to them under the lower appellate Court's decree and have given a receipt to the effect that the amount due to them under that decree has been paid to them, does not, in my opinion debar them from applying for bringing the decree into accordance with the judgment.
7. I therefore think I am bound to decide this application on the merits The late learned Chief Justice before whom this application came and who heard the second appeal thought it proper to issue notice and on a subsequent date ho thought it proper to allow the respondents some time to file a counter. Now that the whole matter is before me, I think on a reading of the judgment of the lower appellate Court, it is absolutely clear that, according to the judgment, the plaintiffs have been given the decree sought for, and Rs. 60 mesne profits as deposed to by P.W. 1 and subsequent profits at the same rate till delivery. That to my mind means that the judgment gives the plaintiffs future mesne profits from the date of the plaint, and the recital in the decree that future mesne profits are to be given only from the date of the appellate decree is, I think, not warranted by the terms of the judgment.
8. As regards the delay, I think it is a matter which the Court should ordinarily take notice of before passing orders under Section 152, Civil P.C. When the mistake is found out only subsequent to the decision in second appeal, it can not be said that such an application should be dismissed on the mere ground that it was not brought to the notice of the Court at the time the second appeal was heard. In the case before me the decree-holders applied to the District Court on 16th March 1927 for amendment and their petition 'was dismissed on the ground already stated, namely, that the District Court had no jurisdiction to order amendment after its decree had been confirmed by the High Court. Then the decree-holders came to this Court, and on 13th February 1928 this application was filed. I cannot say that the delay in the particular circumstances of this case is such as to disentitle the petitioners to the relief which on the merits they are entitled to.
9. For the above reasons, the application will be allowed and the decree of the High Court will be amended by bringing it in accordance with the judgment and by modifying the decree already passed by substituting " the date of the plaint" for the word " from this day "; that is, the date of the lower appellate Court's decree, with the result that the plaintiffs will be entitled to future mesne profits from the date of plaint. Having regard to the circumstances, I think it proper that I should pass no orders as to costs of this application.