ORDER
1. Though the matter is listed under the caption “For Admission”, with consent of the learned counsel for both the parties, the main Civil Revision Petition itself is disposed of by this order.
2. Heard both sides.
3. This Civil Revision Petition is directed against the order and decree, dated 12-11-2002, passed by the Senior Civil Judge at Adoni, Kurnool District, rejecting the application in I.A.No.125 of 2002 in O.S.No.38 of 1965, filed under Section-152 of the Code of Civil Procedure to amend the decree in O.S.No.38 of 1965 specifying the entitlement of the share of each of the petitioners and the respondents therein, in the suit schedule properties.
4. The petitioners are the defendants (brought on record as legal representatives of defendant No-3) and the respondent is the plaintiff. The suit was filed for partition.
5. For the sake of convenience, the parties will be referred to as arrayed in the suit.
6. The undisputed facts are that the plaintiff filed the suit for partition and separate possession of her 1/13th share in the suit schedule properties on the file of Senior Civil Judge at Adoni, Kurnool District. The said suit was dismissed. The matter was carried in appeal in A.S.No.95 of 1968 on the file of District Judge at Kurnool. The lower appellate Court, while allowing the appeal by judgment, dated 07-07-1970, set aside the judgment and decree of the trial Court and passed a preliminary decree in the suit and apportioned the share of the plaintiff alone in the suit schedule properties. Later, the plaintiff filed an application in I.A.No.192 of 1986 to pass a final decree and the trial Court has allowed the said application and passed a final decree. Subsequently, it was noticed by the defendants that in the preliminary decree, passed by the District Court at Kurnool, the lower appellate Court had apportioned the share of the plaintiff alone in the suit schedule properties without any apportionment in favour of the defendants. Therefore, an application had been filed by the defendants seeking necessary amendment of the final decree before the lower appellate Court and the same was returned on the ground that it was only the trial Court, which was competent to amend the final decree. Accordingly, the defendants have filed the present application before the trial Court seeking amendment of decree in O.S.No.38 of 1965 specifying the entitlement of the share of each of the defendants and the plaintiff in the suit schedule properties. The trial Court having found that entertaining present application amounts to amending the judgment and decree of the lower appellate Court, which is not permissible, eventually rejected the same. Hence, the present Civil Revision Petition.
7. The short question that falls for consideration in this Civil Revision Petition is whether the trial Court has got jurisdiction to amend the decree passed by the first appellate Court exercising jurisdiction under Section-152 of the Code of Civil Procedure, if so, under what circumstances?
8. The learned counsel for the petitioner relies on a judgment of this Court in ZAHIRUDDIN vs. ABDUL SATTAR, 1981 (2) ALT 470 wherein a learned single Judge of this Court corrected the mistake, which crept in the decree inadvertently. It was a case where the learned single Judge while allowing the appeal granted a decree for the first time but while doing so, inadvertently passed the decree insofar as the declaratory part of it. The said judgment was carried on in appeal and a Division Bench of this Court dismissed the same. Thereafter, noticing the mistake in passing the decree by the learned single Judge, an application had been made before the first appellate Court for amendment of the decree. In the said circumstances, the amendment of the decree made by the first appellate Court was found to be correct. The other facts and circumstances of the said case and the reasoning thereof are not relevant. This judgment is not a complete answer to the present question before this Court.
9. For better appreciation of the case, the relevant provision in the Code of Civil Procedure is to be extracted, which is as under:
“SECTION-152: Amendment of Judgments, decrees or orders: – 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.
“SECTION-153-A: Power to amend decree or orders where appeal is summarily dismissed: – Where an Appellate Court dismisses an appeal under rule 11 of Order XLI the power of the Court to amend, under Section 152, the decree or order appealed against may be exercised by the Court which has passed the decree or order in the first instance, notwithstanding that the dismissal of the appeal has the effect of confirming the decree or order, as the case may be, passed by the Court of first instance.
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10. Section-153-A of the Code of Civil Procedure had been introduced by the Amendment Act 1976. This was introduced to resolve the difference of opinion amongst different High Courts as to which of the Courts can amend the decree under Section-152 of the Code of Civil Procedure. It appears that the view taken by the Calcutta, Madras, Allahabad and Rangoon High Courts was that it is the first appellate Court alone that can amend the decree whereas the Bombay and Patna High Courts took the view that it is the Court of first instance alone can amend the decree.
11. In this background, it is necessary to refer to some of the judgments, which have been decided by different High Courts, subsequent to the introduction of Section-153 of the Code of Civil Procedure.
12. A Full Bench of the Kerala High Court in KANNAN vs. NARAYANI,
referred to various judgments of the High Courts, including that of Privy Council. In BRIJ NARAIN vs. TEJBAT BIKRAM BAHADUR, (1910) ILR-32 ALL 295
the Privy Council held that alteration of a decree by the Court, which passed it, if that had been affirmed in appeal, was without jurisdiction.
13. It was further noticed by the Full Bench of the Kerala High Court that the principle laid down in Brij Narain’s case (3 supra) was already taken note of and approved by the Supreme Court in GOJER BROTHERS vs. RATAN LAL, . The principle laid down by the Supreme Court in the above said case also necessary to re-extract for ready reference, which is as under:
“An application of this very principle yields the result that if the Court of appeal confirms, varies or reverses the decree of the lower Court, the decree of the appellate Court is the only decree that can be amended: Brij Narain vs. Tejbal, (1910) 37 Ind App 70 (PC) or that the limitation for executing a decree runs from the date of the decree capable of execution and that is the decree of the appellate Court which supersedes that of the Court of first instance 53 Ind App 197: (AIR 1926 PC 93); or that if mesne profits are ordered from the date of suit until the expiry of three years after the date of the decree, the decree to be considered is the decree capable of execution so that if the decree of the trial is confirmed in appeal, three years will begin to run from the date of the appellate decree (1900) 27 Ind App 209 (PC).”
14. The Full Bench of Kerala High Court also had elaborately considered the scope of Section 153-A and also the purpose of its introduction in the Amending Act, 1976, and eventually held as under:
“Except in cases to which Section 153-A of the Code of Civil Procedure applies, where there has been an appeal, the decree under appeal merges in the decree in appeal and it is only the appellate court that could correct or amend the decree under Section-152 of the Code.”
15. In HUSSAIN SAB vs. SITARAM, the Bombay High Court, while drawing distinction between Order-41 Rule-32 and Order-41 Rule-11 of the Code of Civil Procedure, held as under:
“When an appeal is summarily dismissed under the provisions of O. 41, R. 11, the original decree from which the appeal was preferred remains untouched and it is the original decree which is the substantive decree. Therefore, if an application has got to be made for amending the decree, it must be made, not to this Court which has exercised its powers under O-41 R.11, but to the Court which passed the substantive decree.”
16. Of course, the above said decision was prior to the introduction of Section 153-A of the Code of Civil Procedure. In fact, the said decision was also referred to by the Full Bench of Kerala High Court in KANNAN vs. NARAYANI (2 supra) and this view, which was divergent to the views of some of the other High Courts like Calcutta, Madras, Allahabad and Rangoon, had got the statutory seal of approval by way of introduction of Section 153-A by way of Amending Act, 1976.
17. The principle laid down by the Privy Council in Brij Narain’s case (3 supra) had also been referred to in the said judgment.
18. In RAMSUNDER vs. PANA KUER,
the Patna High Court held as under:
“The provisions of S.152 of the Civil Procedure Code which is applicable in the present case, lay down that a clerical error in judgments, decrees or orders can be corrected b the Court. The question is as to which Court has the jurisdiction in a case where the suit travels up to the appellate stage. The power of correction has been vested in the Court where the mistake is committed. It, therefore, follows that if the decree, which is sought to be corrected, has been passed by the appellate Court, it is the appellate Court which has got the jurisdiction to set the mistake right.”
19. It is the established principle, as held by various High Courts, including the decision of this Court in MUNUSWAMI vs. JAGANNADHA, AIR 1958 AP 768
that a decree of a trial Court will merge in the decree of the appellate Court.
20. This is what explicitly held by the Supreme Court in U.J.S. CHOPRA vs. STATE OF BOMBAY,
which is as under:
“A judgment pronounced by the High Court in the exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing in presence of both the parties would certainly be arrived at after due consideration of the evidence and all the arguments and would therefore be a judgment and such judgment when pronounced would replace the judgment of the lower Court, thus constituting the judgment of the High Court the only final judgment to be executed in accordance with law by the Court below.”
21. All the earlier divergent views expressed by different High Courts have now been resolved by the introduction of Section 153-A of the Code of Civil Procedure. Section 153-A makes it abundantly clear that when an appeal was dismissed under Order-41 Rule-11 in limini even without notice to the respondent or to the Court, which passed the decree, the power to correct or amend the decree lies with the Court of the first instance only notwithstanding the resultant confirmation of the decree passed by the Court of first instance. In other words, if the first appellate Court hears and dismisses the appeal as postulates under Order-41 Rule-11 of the Code of Civil Procedure and confirms the decree of the trial Court, the concept or the general rule of merger would not come into picture.
22. The quintessence of the above discussion and legal position is that prior to the Amendment Act of 1976, by virtue of the operation of principle of merger, the appellate Court has the power to amend the decree passed by the trial Court, irrespective of its confirmation or modification or reversion. After the amendment Act of 1976 and by virtue of introduction of Section 153-A, the expression ‘confirmation’ had attained two connotations; firstly confirmation of the decree of the trial Court by the appellate Court in exercise of powers under Order-41, Rule-11 of the Code of Civil Procedure i.e., by summarily dismissing the appeal even without hearing the respondent or his counsel and secondly conformation of the decree of the trial Court on merits, after hearing both the sides. In other words, after amendment, a clear distinction had been drawn between the confirmation of the decree of the trial Court by the appellate Court in dismissing the appeal in limini and confirmation of the decree of the trial Court on merits. In the latter case, on application of principle of merger, it is only the appellate Court which has the jurisdiction under Section-152 of the Code of Civil Procedure to correct or amend the decree, as if it has passed the decree; and in the former case, since the decree of the trial Court has been confirmed by the appellate Court in exercise of jurisdiction under Order-41, Rule-11 of the Code of Civil Procedure i.e., by way of dismissal of the appeal in limini, the jurisdiction under Section-152 can be exercised by the Court of first instance, which passed the original decree. This position is made clear by the explicit language employed in Section 153-A of the Code of Civil Procedure.
23. As already noticed, Section 153-A was introduced only for the purpose of removing the controversy, which arose because of two views expressed by different Courts. Therefore, after the introduction of Section 153-A, there is absolutely no scope for any sort of ambiguity.
24. Coming to the present case, it is to be noted that the Court of first instance had dismissed the suit and in the appeal the same was reversed and a preliminary decree was passed with some inadvertent mistake. In such an event, the judgment of the first appellate Court shall have to be treated as judgment under Order-41 Rule-32 but not under Order-41 Rule-11 of the Code of Civil Procedure.
25. The resultant situation is that the decree passed by the Court of first instance merged with that of the decree passed by the first appellate Court by way of reversal and it is only the judgment and decree of the first appellate Court alone is to be executed, if becomes final, by the Court of first instance i.e., the trial Court.
26. The noticeable aspect in the present case is that when an application had been filed, the same had been returned by the first appellate Court on the ground that it has no jurisdiction under Section-152 of the Code of Civil Procedure and accordingly the papers were returned to the petitioner herein. Faithfully following of the orders of the first appellate Court and totally oblivious of the settled position, the petitioner herein had filed the present application under Section-152 of the Code of Civil Procedure seeking certain amendments before the trial Court and the trial Court having held that it has no jurisdiction to exercise the power under Section-152 of the Code of Civil Procedure, inasmuch as the same had been interfered with by the first appellate Court by reversing the judgment and decree, rightly dismissed the present application holding that the appellate Court alone can exercise the jurisdiction under Section-152 of the Code of Civil Procedure.
27. For the foregoing reasons, I do not find any illegality or irregularity much less jurisdictional error in the impugned order passed by the trial Court warranting interference by this Court.
28. The Civil Revision Petition fails and is liable to be dismissed.
29. In the result, the Civil Revision Petition is dismissed, at the stage of admission. It is needless to mention that the petitioners have the liberty to move the first appellate Court by way of an appropriate application seeking necessary amendment to the decree in O.S.No.38 of 1965.
30. However, there shall be no order as to costs.
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