Sir John Edge, C.J:— It appears to me that the question as to whether this application under s. 622 of the Code of Civil Procedure can be maintained, must depend upon the question as to whether the decree to be amended was the decree of the 22nd June, 1878, of the former Subordinate Judge of Aligarh, or the decree of this Court of the 8th February, 1882. If the decree to be amended is the decree of this Court of the 8th February, 1882, it could not, I think, be contended that the Subordinate Judge could have had any jurisdiction to amend or interfere with the decree of this Court, which is the decree of the Court of appeal. Similarly, if the decree to be amended was the decree of this Court, I fail to see what object could have been attained by amending or what jurisdiction the Subordinate Judge had to amend the decree of the Court below, after that decree had been affirmed by a decree of this Court. The question as to which of these decrees was the decree to be amended, if any amendment could have been made, must, in my opinion, depend on the further question as to whether the decree of an appellate Court affirming the decree of a Court below, is the decree to be amended, or whether in such case the decree to be amended is the [272] decree of the Court below. This latter question is decided by the judgment of a Full Bench of this Court in Shohrat Singh v. Bridgman, where it was decided that “the appellate decree is the final decree and the only decree capable of being executed after it has been passed, whether the same reverses, modifies or confirms the decree of the Court from which the appeal was made.” The facts of the case before the Full Bench and the question submitted for the opinion of the Full Bench show that by “the appellate decree” the Full Bench meant the ultimate decree, as in that case the decree of this Court, and not the decree of the Court below which had been given by the Subordinate Judge of Gorakhpur in the appeal from the decree of the Munsif of Bansi. The judgment of the Full Bench in that case has been to some extent open to misconception, by reason of a clerical error, by which the word “not,” in the last line but one of the reported judgment was allowed to remain. The insertion of the word “not” must have been due to a clerical error. That word being omitted, the judgment is clear and consistent, and is, in my opinion, right in law. It has been contended that judgment is at variance with the judgment of the Privy Council in Kristokinkur Roy v. Raja Burrodacaunt Roy. I do not so read the judgment of then Lordships of the Privy Council. At page 491 their Lordships say, “It is clear that, under that Code, whatever decree is executed, is to be executed by the lower Court, in which the record remains, or to which it is to be returned. But ss. 360, 361 and 362, which prescribe the form of the decree of the appellate Court, direct a copy of it to be entered on the register, and treat that decree as a decree to be executed, seem to exclude the notion that it is a mere direction to the lower Court to pass and execute a certain decree.”

The sections referred to by their Lordships correspond with ss. 579, 581 and 583 of the present Code of Civil Procedure. Again, their Lordships say at page 492, in reference to decrees of affirmance. Their Lordships may further suggest that in all cases it may be expedient expressly to embody in a decree of affirmance so much [273] of the decree below as it is intended to affirm, and thus avoid the necessity of a reference to the superseded decree,” clearly indicating that in their Lordships' opinion a decree affirmed on appeal is superseded by the decree of affirmance. I fail to see how a decree which has been superseded can be executed. Even apart from authority, it appears to me that the decree to be executed is the decree of the appellate Court, whether that decree reverses, modifies or affirms a decree below. By s. 235 of the Code the application for execution of a decree of a Court of first instance must, amongst other particulars, contain the following:—

(c) The date of the decree;

(d) Whether any appeal has been preferred from the decree.

(g) The amount of the debt or compensation with the interest, if any, due upon the decree, or other relief granted thereby; (h) The amount of costs, if any, awarded.”

Some of these particulars in an application made to the Court which first passed the decree would apply only to the decree of that Court and not to the decree of the appellate Court, and the particular (d) “whether any appeal has been preferred from the decree,” presupposes that if any appeal had been preferred, it had not been determined.

S. 579 of the Code amongst other things grants that the decree of an appellate Court “shall specify clearly the relief granted or other determination of the appeal,” and further enacts that “the decree shall also state the amount of costs incurred in the appeal, and by what parties and in what proportion such costs and the costs in the suit are to be paid. That section relates to decrees in first appeals, and is by s. 587 made applicable to decrees in second appeals.

It is clear from s. 579 that in any case the decree to be executed not only for the costs of the appeal, but for the costs of the suit, is the decree of the appellate Court and of that Court only. In my opinion the effect of s. 579 of the Code is to cause the decree of the [274] appellate Court to supersede the decree of the Court below even when the decree of the appellate Court is one which merely affirms that decree below and does not reverse it or modify it. In my opinion the only decree that can be amended is the decree to be executed, and the decree to be executed is the decree of the appellate Court, and not the decree of the Court below. To take a case which might arise if we were to hold otherwise; assume that a decree of a Court of first instance is not in conformity with the judgment of that Court, but such decree has on appeal been affirmed in general terms or by specifically complying with the provisions of s. 579. If in such case the Court of first instance were to alter its decree which had been already affirmed on appeal by bringing it into accordance with its judgment, the result would be that the decree so amended would not be the decree which had been affirmed on appeal, and might be a decree absolutely at variance with the decree which the appellate Court had made and had decided was the decree which the successful party on appeal was entitled to. If a decree in a case like this can be amended, it must, is my opinion, be for the appellate Court, which can say what was the decree which it intended to make by affirmance or otherwise, and not for the subordinate Court, to amend the decree of the appellate Court. It would, as it appears to me, be useless to amend the decree of the Court below, which was superseded by the decree in appeal. As this application under s. 622 relates to the order of the Court below and is not an application to this Court to amend the decree of this Court of the 8th February, 1882, it is not, I think, necessary to express any opinion as to the judgment of Straight and Tyrrell, JJ., of the 16th August, 1883, or as to the effect of the order of Oldfield, J., of the 8th May, 1884. As I am clearly of opinion for the reasons which I have stated that the Subordinate Judge had no jurisdiction to make the order to which this application refers, it is not, I think, necessary to express any opinion as to the article of the Limitation Act which may govern such applications, or to express any opinion as to whether a Judge who was no party to the making of a decree could amend such decree in the manner desired by the decree-holders in this case.

[275] In my opinion this application should be allowed and the order below set aside. Under the circumstances of this case I think each party should bear their own costs here and below.

Straight, J.:— I am of the same opinion.

In the view I take of this reference, after having heard the arguments on both, sides, the determination of it and the case turns upon the single question,- whether the Subordinate Judge had jurisdiction to make the order of the 20th July, 1885. If he had, then the application to this Court under s. 622 of the Code was rightly preferred, and the other points arising, upon which revision is sought, must be considered and decided; if he had not, then there is obviously an end of the matter. It seems to the that the Full Bench ruling of this Court in Shohrat Singh v. Bridgman practically concludes that question. It was there held that the decree of the Court of last instance is the only decree susceptible of execution, and that when the decree of the lower Court with all its specifications is simply affirmed by and adopted in the decree of the last appellate Court, it would then be open to the Court executing such last decree to refer to the decree of the lower Court for information as to its particular contents. But no question of the correctness of the contents could be entertained or given effect to by the executing Court. Objections to the decree of the lower Court which, has become that of the last appellate Court could be attended to by the latter Court alone.” This is what appears from the body of the judgment, and it is clear that the head-note to the case is erroneous, though this is probably due to the presence of the word “not” in the last sentence of the judgment, which upon the face of it is a mistake, as the context with which it is irreconcileable plainly shows. That this is so is placed beyond doubt by a subsequent judgment of Tyrrell. J., who wrote the Full Bench judgment, and myself also a party to it, in Behari Lal v. Khub Chand, where we held that the Court executing an appellate decree might execute it for the costs of the original Court, looking to the decree of that Court to ascertain the amount thereof, and Oldfield, J., expressed himself to the same effect in another case [276] Gobardhan Das v. Gopal Ram though, in my opinion, while rightly interpreting the meaning of the Full Bench ruling, he misapplied it. The question therefore which is before us seems to me to be settled by the Full Bench ruling, and if on no other principle than that of stare decisis we ought, in my opinion, not to reconsider it. But I desire to add that, according to my view, that decision is not only a perfectly sound one, but upon grounds of simplicity and convenience of procedure is unassailable. Much stress was laid in the course of the argument for the respondents on the judgment of their Lordships of the Privy Council(3). It is to be observed that the real point then arising for determination was, whether, under the limitation law then in force, namely, Act XIV of 1859, a period of three or twelve years was applicable to the execution of a decree passed by the High Court in appeal from a District Court, and it was held in accordance with a Full Bench ruling of the Calcutta Court reported in the 16th volume of Sutherland's Weekly Reporter that three years was the period. No doubt their Lordships do make some remarks with regard to a part of that decision of the Full Bench, which held that the decree of a District Court affirmed of appeal by a High Court becomes a decree of the High Court; but with profound respect it seems to me that they can only be regarded as obiter, and though I concur in the interpretation placed upon them by the learned Chief Justice and not that of my brother Mahmood, they can, in my opinion, have no bearing on questions arising in reference to the existing limitation law, which expressly provides that where an appeal has been preferred, time runs from the date of the final decree or order of the appellate Court, or to the present Code, by which the procedure of the Courts is now governed. By s. 579 of Act XIV of 1882 it is declared what a decree in appeal shall contain, by s. 581 such decree along with the judgment is to be sent to the Court which passed the decree appealed against, and by s. 583 it is specifically provided that a party desiring to obtain execution of an appellate decree shall apply to the Court which passed the decree appealed against, and “such Court shall proceed to execute the decree passed [277] in appeal according to the rules hereinbefore prescribed for the execution of decree in suits.” In this connection I may conveniently refer to the judgment of a Division Bench of the Calcutta Court Noor Ali Chowdhari v. Koni Meah(4). It may also be noted that the provisions of the Code relating to appellate decrees are much the same as those which in Chapter XLV deal with the orders of Her Majesty Council, as to which there can be no doubt that it is Her Majesty's order and nothing else which the Courts in India have to execute, and so a Full Bench of the Calcutta Court has specifically said in Luchmun Persad Singh v. Kishun Persad Singh(5). For these reasons not only do I think the Full Bench ruling of this Court, Shohrat Singh v. Bridgman(6), binds us, but that it is perfectly good law. Applied to the facts of the present case, the matter therefore stands thus, that the judgment and decree of Stuart, C.J, and Oldfield, J., of the 8th February, 1882, by adopting the judgment and decree of the Subordinate Judge, superseded such judgment and decree, and that it was the decree of this Court only that was capable of execution, assisted so far as was necessary for that purpose by reference to the Subordinate Judge's decree which it incorporated. It follows therefore that the Court and the only Court to which application could be made under s. 206 of the Civil Procedure Code was this Court, and that whatever may be the correctness or the effect of the order of Oldfield, J., on the application of the 6th March, 1884, about which I express no opinion, such application was rightly made to him and he alone had jurisdiction to deal with the matter. I regret that this view should be at variance with that expressed by my brother Mahmood in Ram Saran v. Persidhar Rai, but it seems to me to be the necessary consequence of the Full Bench ruling of this Court, and is in accordance with the opinion expressed by Couch, C.J, no doubt when Act VIII of 1859 was in force, in Onraet v. Sankar Dutt Singh, and of my brother Mahmood himself at one time in Tarsi Ram v. Man Singh. The only other [278] authority to the contrary is a ruling of Collins, C.J, and Muthusami Ayyar, J., in Sundara v. Subbanna but as no reasons are given for that decision, and as no argument was addressed to those learned Judges in support of the Munsif's order in that case, I am unable to accept it as a safe guide. I am of opinion that the preliminary objection of the petitioner for revision to the jurisdiction of the Subordinate Judge to make the order of the 20th July, 1885, must prevail, and that this petition being allowed, such order must be set aside. Looking, however, to all the circumstances, I think the parties should pay their own costs in all Courts.

Mahmood, J.:— The facts of the case and the points of law which arise from those facts are so clearly stated in the order of reference that I need not repeat them, and I shall express my views upon the points of law in the order in which they have been stated. But before doing so, I may premise that the Full Bench rulings of this Court in Surta v. Ganga and Baghunath Das v. Rajkumar, which approved of my judgments in those same cases(7), when they were disposed of by Mr. Justice Oldfield and myself in two dissentient judgments, leave no doubt that the order of the learned Subordinate Judge, dated 20th July, 1885, having been passed for amending a decree under s. 206 of the Code of Civil Procedure, amounts to a separate adjudication and as such might be made the subject of revision under s. 622 of the Code of Civil Procedure.

This being so, the first question referred to the Full Bench is, “when the decree of a subordinate Court has been confirmed or modified in appeal, what Court has jurisdiction to entertain an application for amendment under s. 206 of the Civil Procedure Code?”

In considering the question I cannot help feeling that the first step of reasoning is the rule unanimously laid down by a Full Bench of this Court in Shohrat Singh v. Bridgman(8). The head-note [279] of that ruling, as appears in the report of the case, represents that this Court unanimously held “that the decree of the Court of last instance is the only decree susceptible of execution, and the specification of the decrees of the lower Court or Courts as such may not be referred to and applied by the Court executing such decree.” This head-note is a reproduction verbatim of the last sentence of my brother Tyrrell's judgment in that case which the rest of the Court adopted. It was principally in consequence of the existence of the word “not” in that sentence that in delivering my judgment in Gobardhan Das v. Gopal Ram I stated that I had on several occasions sitting as a Judge in Oudh declined to follow that ruling. But in the course of hearing this case, the learned Chief Justice, having sent for the original record of the judgment, has come to the conclusion that the word “not” which occurs to the last sentence of the judgment, was due to a, lapsus calami, because it would render the sentence inconsistent with an earlier passage in the same judgment. In this view I understand my brother Straight, who was a party to the Full Bench ruling, concurs; and I am also very glad to adopt the same explanation because it materially reduces the rigour of the ruling as represented in the head-note. Reading the ruling then, omitting the word “not” I understand it to hold “that the decree of the Court of last instance is the only decree susceptible of execution, and that the specifications of the decrees of the lower Court or Courts as such may be referred to and applied by the Court executing the decree.” This interpretation of the Full Bench ruling is in full accord with the explanation of that judgment by Oldfield, J., in Gobardhan Das v. Gopal Ram, where that learned Judge distinctly stated that the Full Bench ruling was not intended to go beyond the ruling of their Lordships of the Privy Council in Kristokinkur Roy v. Raja Barrodacaunt Roy. I had in that case the honour of being associated with Oldfield, J., and willingly concurred in his explanation, because it went the length of permitting, what was actually done in that case, namely, that when the first Court's decree had been simply affirmed by the High Court as the Court of last instance, the [280] decree-holder was allowed to execute the decree of the Court of first instance, which decree had in no manner been altered either by the lower appellate Court or by this Court.

I have no desire to re-open the, question settled by the Full Bench ruling in Shohrat Singh v. Bridgman as now explained. Nor do I think it necessary, for the purposes of this case, to enter into the broad question, how far the Full Bench ruling would affect the question of amendment of a decree which has been either reversed or modified by a Court of appeal. In this case the decree of the Subordinate Judge was simply affirmed by this Court, and the question as to the power of amendment is therefore limited to the case of a decree which has been affirmed.

Dealing with the question in this strictly limited form, I am of opinion that the rule laid down by Oldfield, J., in Gobardhan Das v. Gopal Ram with my concurrence represents the correct view of the law. That view is in full accord with the observations made by the Lords of the Privy Council in Kristokinkur Roy v. Bajah Burrodacaunt Roy. Those observations may be quoted by me here because I shall presently rely upon them for the view of the law which I have taken in this case. Their Lordships, after referring to the state of the case-law as represented by Chowdhry Wahid Ali v. Mullick Inayat Ali, Arunachella Thudayan v. Veludayan, and a Full Bench ruling of the Calcutta High Court in Ram Charan Bysak v. Lakhi Kant Bannik, went on to say:—“The function of an appellate Court is to determine what decree the court below ought to have made. It may affirm, reverse or vary the decree under appeal. In the first case, it leaves the original decree standing, superadding, it may be, an order for the payment of the costs of the appeal, or for the interest on the amount originally decreed. In the other two cases it substitutes other relief for the relief originally given. In all these cases the decree of the appellate Court may be regarded either as a direction to the lower Court to make and execute a decree of its own accordingly, or as an independent decree, [281] whether it is to be executed by the appellate Court or by the lower Court. In the latter case a further question arises, namely, whether the original decree, if wholly affirmed, (or so much of it as has been affirmed, if it has been partially affirmed), is to be treated as merged or incorporated in the decree of the appellate Court as the sole decree capable of execution, or whether both decrees should be treated as standing, execution being had on each in respect of what is enjoined by the one, and not expressly enjoined by the other.”

Having thus explained the general principles applicable to such questions, their Lordships referred to the law and practice of English tribunals, and then, after considering the provisions of the old Code of Civil Procedure (Act VIII of 1859) and referring to the effect of the Calcutta and Madras rulings, made the following observations:—

“If the question were res integra, their Lordships would incline to the view taken by the Judges of the High Court in the present case, namely, that the execution ought to proceed on a decree of which the mandatory part expressly declares the right sought to be enforced. Considering, however, that for the reasons already given, the question is not of much practical importance, their Lordships will not express dissent from the rulings of the Madras Court, and of the Full Bench of the Bengal Court, further than by saying, that there may be cases in which the appellate Court, particularly on special appeal, might see good reasons to limit its decision to a simple dismissal of the appeal, and to abstain from confirming a decree-erroneous or questionable, yet not open to examination by reason of the special and limited nature of the appeal. Their Lordships may further, suggest that in all cases it may be expedient expressly to embody in a decree of affirmance so much of the decree below as it is intended to affirm, and thus avoid the necessity of a reference to the superseded decree.”

Now, in the first place, I am of opinion that the passages which I have quoted from the judgment of the Lords of the Privy Council are not to be regarded as mere obiter dicta, because those passages [282] form an essential part of the ratio decidendi upon which their Lordship's judgment proceeded. In the second place, I hold that their effect is to modify the views expressed by Mitter, J., in the Calcutta Full Bench case, and by Scotland, C.J, in the Madras case, both of which have already been cited. In the third place, their Lordships drew a clear distinction between a decree which has simply been affirmed in, appeal and a decree which has either been reversed or modified by the appellate Court.

Such distinction is to my mind clearly born out by clause (d) of s. 574, which, whilst requiring that the judgment of the appellate Court should specify “the relief to which the appellant is entitled,” limits the direction to cases in which “the decree appealed against is reversed or varied,” and says nothing as to cases in which the appellate Court simply affirms' the lower Court's decree. The same distinction is apparent from the second-paragraph of s. 579, which directs that the appellate decree “shall specify clearly the relief granted or other determination of the appeal,” but says-nothing as to cases in which no relief is granted to the appellant by such appellate decree, and the only “determination” of the appeal amounts to saying that the appeal should never have been preferred. The section certainly does not require that in such cases the appellate decree should supersede the first Court's decree so as to render that decree ineffective for purposes of execution. On the contrary, the provisions of s. 583, which relate to the execution of the decrees of the appellate Court, distinctly imply that the appellate Court's decree, when it simply affirms the first Court's decree, is to be distinguished from cases in which the first Court's decree has been interfered with. I say this, because the section limits the execution of the appellate Court's decree to cases in which a party is entitled to any benefit by way of restitution or otherwise under a decree passed in appeal.” It follows that where, as in this case, the original decree was simply affirmed even without any order as to costs of the appeal which was dismissed, s. 583 of the Code would have no application, because no question of restitution or any other benefit would arise out of the appellate Court's decree, [283] and the mandatory part of the original decree which has not been interfered with at all, would stand, though the fact of the ineffective appeal would have to be mentioned as required by clause (d) of s. 235 of the Code of Civil Procedure. In such cases, at least, the dictum of the Lords of the Privy Council which I have quoted would apply, because to use their Lordships' words, “the question is not of much practical importance” by which sentence I understand that, in such a case as this, it does not matter very much whether the original decree or the decree of the appellate Court is put into execution, so long as the decree which contains the mandatory order granting the relief is the decree which is sought to be enforced, whether as a decree in itself or as a decree incorporated in the appellate Court's decree of affirmance.

The matter therefore stands thus: that according to the Privy Council ruling, as also the Full Bench ruling of this Court as explained by Oldfield, J., in the case of Gobardhxn Das and as now understood by us, the decree of the first Court when affirmad by the appellate Court's decree may be referred to in executing the appellate decree.

In the present case the first Court's decree was passed on the 22nd Tune, 1878, and it was simply confirmed in appeal by Stuart, C.J, and Oldfield, J., on the 8th February, 1882, there being then no objection that the first Court's decree was incapable of execution by reason of its omitting to specify the shares or the mauzas decreed in favour of the plaintiffs. The objection that the decree was incapable of execution was taken for the first time when the decree was sought to be executed, and those objections having been disallowed by the first Court, my brethren Straight and Tyrrell, on the 16th August, 1833, held in appeal that the decree was incapable of execution by reason of the want of specification above mentioned. The case is reported at page 30 of the Indian Law Reports, vol. 6, Allahabad series, and the judgment in that case ends by saying that “the proper and only course open to the decree-holders was to procure the remedy of these defects according to law.”

[284] The decree-holders accordingly made an application to this Court on the 6th March, 1884, praying that this Court's decree of affirmance, dated the 8th February, 1882, might be so amended, under s. 206 of the Code of Civil Procedure, as to render it capable of execution. In other words, the decree-holders prayed that the defects which were pointed out by Straight and Tyrrell, JJ., in their judgment of the 16th August 1883, (1) might be remedied, as those learned Judges had suggested. The application was probably made to this Court in consequence of the Full Bench ruling in Shohrat Singh v. Bridgman, for otherwise the application would naturally have been made to the Court of first instance, since the decree of this Court was simply a decree of affirmance. The application came on for hearing before Oldfield, J., and it was probably in consequence of the literal interpretation which that learned Judge placed on the Full Bench ruling in Shohrat Singh's case that he rejected the application on the 18th May, 1884, by simply saying “there is no case made out for correcting the decree of this Court, which is correct.”

It is not for me to doubt the accuracy either of the ruling of my brethren Straight and Tyrrell, dated the 16th August, 1883, or of the order of Oldfield, J., which I have first quoted. Both these judgments must be read in the light of the Full Bench ruling in the case of Shohrat Singh, and so read, I confess I find it difficult to reconcile them. The one judgment holds that the decree was vague and required amendment; the other judgment says that the decree needed no such amendment and was correct.

It is easy to conceive how these unfortunate decree-holders, finding themselves in this predicament, entertained the hope of obtaining the enforcement of the decree which they had obtained, by resorting to a third method. They, accordingly went on the 6th February, 1885, to the first Court with an application praying that Court to render its decree intelligible and capable of execution by amending it under the provisions of s. 206 of the Civil Procedure Code. That Court granted the application and amended the [285] decree by its order of the 20th July, 1885, which is the subject of this application for revision.

The object of the application for revision is to render the first Court's decree of the 22nd June, 1878, and this Court's decree of the 8th February, 1882, wholly nugatory; and it has been contended that under the circumstances of this case, the law requires us to render futile the effects of two solemn adjudications whereby the decree-holders were decreed their shares of inheritance under the Muhammadan Law in ancestral property.

Does the law require us to accede to such a request? As to the justice of the case upon the merits, there is absolutely no doubt, and the only question is, whether the technicalities of our law are such as constrain us to accede to the request. The learned Pandit who appeared in support of this application has frankly accepted this position in the able argument which he addressed to us, and has reminded us of the well known adage that hard cases often make bad law. I have to consider whether the justice of this case does require us to make bad law.

I must confess at once that I do not regard the question raised here as intrinsically difficult, and respectfully say that if any complications and difficulties have arisen, they are due to the unsatisfactory condition of the provisions of the last paragraph of s. 206 of the Civil Procedure Code (Act XIV of 1882) and to the orders which have already been passed in this case by this Court. Indeed, this case furnishes a very good illustration of the complications and difficulties which I pointed out in Tarsi Ram v. Man Singh as arising out of the provisions of that section. In making my observations there, I went on to say, “If a decree has already become the subject of appeal, I do not think the first Court should amend it under s. 206; for the Full Bench of this Court in Shohrat Singh v. Eridgman has held that the decree of the appellate Court is the only decree susceptible of execution, and the specifications of the decrees of the lower Courts, as such, may not be referred to and applied by the Court executing such decree.”

[286] I have quoted this passage in order to point out that the suggestion therein contained proceeds eutirely upon the interpretation of the Full Bench ruling as represented by the head-note and the last sentence in the judgment in which the word “not” occurs, which word according to our present interpretation must be omitted, as I have already stated. This being so, it follows that I should have not given expression to that dictum if I had understood the Full Bench ruling at that time in the manner in which it is now interpreted, and that dictum is no authority against the view which I now hold on the first question in the case.

I am of opinion that when the decree of a subordinate Court has been simply confirmed, as in this case, the Subordinate Court continues to have jurisdiction to entertain an application for amendment of its own decree under s. 206 of the Civil Procedure Code. This view is supported by the ruling of the Madras High Court in Sundara v. Subbana and by the unreported ruling of this Court in Mohan Lal v. Lachmi Prasad, (Misc. No. 213 of 1886, decided on the 22nd December, 1886), in which Oldfield and Brodhurst, JJ., after formulating the exact question as to the power of amendment by the first Court when the decree has been affirmed, went on to say, “we know of no reason why the Court has not such a power” and they concurred in following the Madras ruling. Both these rulings were considered by me in Ram Saran v. Persidhar Rai and I followed them for reasons which I therein stated, and still adhere to. It is clear from these cases that the Madras Court, as also this Court, so far as the case law stands, is agreed in holding that a decree which has been affirmed by an appellate Court may be amended by the Court which passed the original decree. There is, however, an old ruling of Couch, C.J, and Kemp, J., in Onraet v. Sankar Dutt Singh, where Couch, C.J, as Chief Justice of the Calcutta High Court, followed an earlier ruling of his own in Bhanushankar Gopal Ram v. Baghunath Ram Mangal Ram which was given when he was puisne Judge of the Bombay High [287] Court. The effect of these two rulings is to lay down the broad rule that after a decree has been confirmed on appeal, the subordinate Court has no power of making any alteration in it. I have respectfully considered both these rulings, and I think, for the purposes of this case, it is enough to say that they were passed under the old Civil Procedure Code (Act VIII of 1859) of which s. 189, which corresponds to s. 206 of the present Code, contained no such power as to amendment of decrees as the last paragraph of the latter section contemplates; that these rulings were given before the observations made by the Lords of Privy Council in Kristokinkur Roy v. Rajah Burrodacaunt Roy, and that, therefore, those rulings cannot govern the interpretation of the second paragraph of s. 206 of the present Code which did not then exist in the statute book but with which we are concerned in this case. And I may add, before proceeding further, that not a single ruling has been cited at the Bar which would contradict the view of the second paragraph of s. 206 taken by Collins, C.J, and Mutbusami Ayyar, J., in Madras, and by Oldfield and Brodhurst, JJ., and myself here in the cases which I have already referred to.

Such then is the state of the case-law upon the subject of the amendment of decree by the Court which passed it, after such decree has been affirmed by a Court of appeal, and if the matter rested entirely upon the case law since, the enactment of the last paragraph of s. 206 of the Code, I should have considered it unnecessary to deal with the subject any further. But since serious doubts have been suggested in the course of the argument, I must proceed to consider the question more fully than I did in Ram Saran v. Persidhar Rai especially as that case was disposed of by me sitting as a single Judge and without the advantage of conferring with any of my brother Judges.

Now, I take it as an undoubted principle of law that everything is to be taken as permissible unless there is some prohibition against it. The principle is of such a comprehensive nature that it applies equally to substantive and adjective law, and has been recognised [288] as one, of the fundamental principles of interpreting statutes. It is, indeed, true that in interpreting consolidatory statutes, such as the preamble of our Civil Procedure Code represents that enactment to be, we must consult the statute itself in order to find authority or prohibition.

If I am right so far, where is the authority or prohibition in that Code for holding that the jurisdiction which a Court passing a decree undoubtedly possessed to amend that decree, under the last paragraph of s. 206 of the Code, is taken away from that Court by the simple fact of an appeal having been preferred from that decree? Clearly no such express provision exists in the Code. On the contrary, there are indications in the very opening sentence of s. 545 of that Code to show that the mere fact of an appeal having been preferred from a decree shall be no reason for staying the execution of that decree. Let us suppose then, in the first place, that a decree is amended before it has been appealed from. In such a case I should have no hesitation in holding that the Court passing the decree could amend the decree, for any other view would necessitate the conclusion that the last paragraph of s. 206 need not have been enacted at all. Let us then, in the next place, suppose a case in which an, appeal has already been preferred from the decree, but the appeal is still pending. In such a case, where is the authority in the Code to justify the view that the power and jurisdiction to amend the decree has come, to an end by the mere fact of the appeal having been filed? I am not aware of any provision of the Code to warrant our holding that the pendency of an appeal operates as extinguishing the lower Court's power of amending its own decree under s. 206 of the Code. No principle such as the doctrine of lis pendens would, of course, apply to such a matter, for the matter is one of procedure and must be governed by the provisions of the Code.

Then comes the third stage, which relates to the immediate question-now before Us, namely, whether there is any authority in the Code to warrant the conclusion that when a decree has been affirmed in appeal (and I limit the points to cases in which the decree has been upheld, excluding those in which the decree has been interfered [289] with by the appellate Court) the Court of first instance ceases to possess the power of amending its own decree, which power up to, the moment of the disposal of the appeal it undoubtedly possessed. It has been contended that the Full Bench ruling in Shohrat Singh's case necessitates the conclusion that the power of amendment does so come to an end. But as that ruling has now been explained, it permits, at least in cases where the original decree is affirmed in appeal, reference to such decree. And if this is so, it seems to me that the decree which requires reference is the decree which would be in accord with the judgment of which it is the result, and not a decree which on the face of it contains clerical or arithmetical errors or is obviously at variance with the judgment, that is, contains such defects as can be properly removed by amendment under s. 206 of the Code.

It is perfectly true that a clerical or arithmetical error or any matter in the decree at variance with the judgment may be rectified by the Court of appeal, but in such a case I should not regard the decree of the appellate Court to be a decree of simple affirmance, but one of modification, and different considerations, which I do not intend to discuss here, would be applicable. But where the appellate decree simply affirms the original decree, which decree may be referred to in executing the appellate decree, I see no reason why such original decree should not be brought into accord with the judgment of which it is the result. It may, indeed, be, as has been suggested in the course of the argument, that the original Court, by amending its decree, may make that decree different to what was intended to be upheld by the appellate Court. But such a course would be an improper exercise of jurisdiction under s. 206 of the Code, and, as such, would form a fit subject of interference in revision by this Court. In other words, a clear remedy exists for an improper exercise of the power of amending decree, and, it seems to me that there is no force in the argument that because such power may be improperly exercised in some cases, therefore, even in cases where such power has been properly exercised, the amendment of the decree is to be dealt with as a nullity, although it brought the [290] decree in full accord with the judgment, and although the amended decree represents the proper decree which the appellate Court upheld. In such cases I am of opinion that the proper Court to which an application for amendment of the decree under s. 206 of the Civil Procedure Code should be made is the Court which passed the decree “of which the mandatory part expressly declares the right sought to be enforced,” and that, in a case such as this, where the original decree was simply affirmed in appeal, the Subordinate Judge's Court had jurisdiction to entertain the application for amendment.

This, then, is my answer to the first question as propounded in the order of reference, and it may be illustrated by cases in which an appeal is dismissed in default or barred by limitation.

The second question, as stated in that order, is, “What, if any, article of the Limitation Act governs applications for amendment of decrees, under s. 206 of Civil Procedure Code?” This question is the subject of a Division Bench ruling of this Court in Gaya Prasad v. Sikri Prasad, in which it was held, for reasons which do not appear in the report of the case, that the general provisions of art. 178 of the Limitation Act (XV of 1877), prescribing a period of three years' limitation, applied to such applications. In delivering my judgment in Raghunath Das v. Rajkumar I expressed my dissent from that ruling by saying—

“The Limitation Act relates to the action of parties, but not to the action of the Court. If the Court should be of opinion that by reason of any clerical or arithmetical error, its decree does not carry the judgment into complete effect, it may take up the decree and amend it even after three years or more. Under the provisions of the law as to revision, a decree cannot be revised if an appeal from it is possible. By s. 206, as I understand it, the Court has power to amend its decree, even if an appeal would lie therefrom, to this Court or to their Lordships of the Privy Council, and the time for the appeal had expired.”

[291] Again, I expressed my dissent from that ruling in delivering my judgment in Tarsi Ram v. Man Singh, though in the latter case my views form part of obiter dicta. I, however, referred to the authority of the principle on which the rulings of the other High Courts in Roberts v. Harrison, Kylasa Goundan v. Ramasami Ayyan, and Vithal Janardan v. Vithojirav Putlajirav, proceed. I still adhere to the same opinion, and hold that a vast distinction exists between cases in which a Court of its own motion takes any particular action or is enjoined by law to take such action, and cases where that Court possesses no such power without an application being made by a party. The reason is that in such cases it is, ex necessitate rei, impossible to decide when a Court takes action of its own accord and when it acts on the application of a party. The Madras and Bombay cases to which I have referred relate to the grant of sale certificates to the auction-purchaser, and those Courts have held that because it is the duty of the Court to grant such certificates, the mere fact of an application being made for obtaining such certificate would not be governed by the limitation law. I may perhaps also employ the illustration of an application made by a decree-holder to obtain the money held in deposit for him by the Court.

The same principle applies to cases in which the Court is required to take action, suo motu, such as amending decrees under s. 206 of the Code of Civil Procedure. There is, of course, no period provided by the limitation law for the exercise of such power by the Court of its own motion, and it would be introducing an anomaly to hold that what a Court may do of its own motion without any limitation of time, cannot be done by that Court when asked to do so by an application reminding the Court to do that which it should have done of its own motion. My answer to the second question therefore is that no period of limitation, and no article of the Limitation Act (XV of 1877) is applicable to such applications or motions [292] as s. 206 of the Civil Procedure Code contemplates. I may repeat here what I have more than once said before, that, judging by the preamble of that Act, it is not to be regarded as a consolidator enactment so far as “applications” are concerned, because the preamble mentions only “certain applications,” and not all classes of applications.

Upon the third question as enunciated in the order of reference, I am of opinion that the order of Oldfield, J., dated the 8th May, 1884, which might have been appealed from under s. 10 of our Letters Patent, not having been so appealed, has become final and concludes the parties from praying for the same relief, that is, seeking amendment of the decree of this Court, which was declared by that order to be “correct.” The matter is therefore res judicata and cannot be interfered with by us in this case. But whilst I hold this, I am of opinion that order benefits the case of the decree-holders-respondents; because it precludes us from holding that the decree of this Court, which the decree-holders unsuccessfully sought to amend, is in need of any amendment or is incapable of execution. The decree was simply a decree of affirmance and contained no mandatory part expressly declaring the right sought to be enforced, and Oidfield, J., no doubt, therefore, thought that, since the decree gave full effect to the judgment of this Court, it was a sufficiently accurate decree so long as it dismissed the appeal with which it dealt.

Having so far dealt with the specific questions enunciated in the order of reference, I will deal briefly with the remaining part of the argument addressed by the learned Pandit in support of the application for revision. I understood the learned pleader to argue that because in s. 624 of the Code reference is made to “some clerical error apparent on the face of the decree,” and such clerical error is also mentioned in s. 206, therefore the application for amendment granted by the Subordinate Judge must be taken to be an application for review of judgment, such as could not be entertained by a Judge other than the one who passed the original decree, and that, therefore, the order of the Subordinate Judge must be set aside in [293] revision. Now, in the first place, if the argument is to be accepted, this application for revision which has been made under s. 622, would require dismissal, because under the second paragraph of s. 629 an appeal would lie to this Court, and no such application for revision could therefore be made. In the next place, I think Mr. Dwarka Nath Banerji was right in his contention that there is no rule of law relating to the interpretation of statutes, or even to the rules of common law, which lays down that where more than one remedy for the same purpose is provided, the person entitled to such remedy is restricted to any particular mode, or that any particular remedy bars the other remedies. I have already said that clerical or arithmetical errors may be corrected by a Court of appeal, and I hold the same view as to review of judgment. But so long as the errors fall within the purview of s. 206, I cannot hold that section is not available to a party simply because the errors of which he complains might also have been rectified by appeal or review of judgment. The application to the Subordinate Judge in this case was clearly an application under s. 206 of the Code, and, therefore, although the learned Subordinate Judge who passed the order now under consideration was not the same as the one who passed the original decree, I hold that the prohibition contained in s. 634 has no application to the case.

I think I have now dealt with all the arguments in the case which were addressed to us at the Bar. But in support of the general effect of the view of the law which I have taken, I wish to refer to the bearing which the maxim ubi jus ibi remedium has upon this case. That maxim represents such a fundamental principle of jurisprudence that it is not limited to ante litem motam, but applies equally to rights which have been decreed by competent adjudication. This being so, it seems to me that it would be simply nullifying the decrees of the first Court and of this Court which decreed the decree-holders' claim, if we were to hold that, although those decrees are standing mandates of judicial tribunals, yet those standing mandates are futile and cannot enable the decree-holders to obtain that which was decreed to them as their inheritance in their [294] ancestral estate. In other words, to hold that those decrees, even under the singular circumstances of this case, are incapable of execution, would amount to saying that the doors of the Courts of justice in British India are open to litigants, yet the decrees obtained by them, though confirmed by the highest tribunal in the land, may end in nothing, not on account of any fault or negligence on the part of the decree-holders, but on account of the manner in which these decrees are dealt with by the very tribunals which have passed them. And I fully approve the observations of the learned. Subordinate Judge when, referring to the technical defects of the plaint in the original litigation, he said:—“All the proceedings that took place in the case, the whole trial and the decision, cannot now be set aside on account of that defect now pointed out by the defendants for the first time. Those proceedings were legal and proper notwithstanding that defect. To hold them null and void on account of that defect would be a denial of justice to the plaintiffs.” It may be true, as the learned Pandit said, that hard cases make bad law, but I hope that it is equally true that the technicalities of law are not to be so employed as to override the obvious ends of justice, and instead of being ancillary to such ends, defeat them.

Upon the merits of the amendment made by the learned Subordinate Judge no argument has been pressed upon us, beyond the suggestion that since the decree did not specify the shares and villages which were decreed to the decree-holders, therefore the amendment which furnished such specification in the decree was improperly made. It has not been contended that the properties now specified in the decree by dint of the amendment are properties other than those which were actually (that is, as a matter of fact), the properties which formed the subject of litigation in the first Court, such properties being clearly specified in the list attached to the plaint. Nor is it doubted that the decree of the first Court in decreeing the claim referred to those properties, and that the subject-matter of the appeal in this Court also consisted of those properties. This, indeed, is an obvious inference from the fact that [295] the judgment-debtors themselves never took any objection as to the vagueness of the decree-holders' plaint or of the decree in the regular litigation, either in the Court of Subordinate Judge or on appeal in this Court.

What other objection can there be to the amendment made by the Subordinate Judge? Certum est quod certum reddi potest, and in this case the application of the maxim creates no difficulty, because the record of the case clearly shows what the actual properties were to which the litigation, which ended in the decree of the first Court and the affirmance of that decree by this Court, related.

The case is, thus, so far, on all fours with my ruling in Ram Saran v. Persidhar Rai and following the same view here, I hold that there was no want of jurisdiction in the Subordinate Judge who amended the decree, and that such amendment was not open to the objection of illegality or material irregularity, and, having caused no injustice, is not open to interference in revision under s. 622 of the Civil Procedure Code. This view is in accord with the Privy Council ruling in Amir Hasan Khan v. Sheo Baksh Singh and with the Full Bench rulings of this Court in Magni Ram v. Jiwa Lal and Badami Kuar v. Dinu Rai, and is consistent even with my explanation of those rulings and others in the judgment which I delivered in Bhan Singh v. Basant Singh, which only adopted the views which I had before expressed in Har Prasad v. Jafar Ali.

For these reasons the learned Subordinate Judge's order of the 20th July, 1885, now under consideration, is subject to no objection of want of jurisdiction or any illegality or material irregularity, such as s. 622 of the Code contemplates, and since, as I have already said, the order far from having caused an injustice, has done justice to the rights of the decree-holders-respondents, I hold that the discretionary powers of interference conferred upon us by s. 622 of [296] the Code of Civil Procedure, should not be so exercised in this case as to interfere with the order of the learned Subordinate Judge.

I would dismiss this application with costs.