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Karnataka High Court
Shanthappa Alias Thatappa vs Smt. Buddamma Alias Lakshmamma … on 5 September, 2000
Equivalent citations: ILR 2000 KAR 4665, 2001 (2) KarLJ 617
Bench: T S Thakur, K S Rao


ORDER

1. The short question that falls for consideration is whether an application for amendment of the judgment and decree passed in favour of the predecessor in interest of the applicant before us can be maintained before the Appellate Court. The question arises in the following circumstances.-

2. Smt. Buddamma, w/o late Sri Changaiah filed a suit for partition against a joint family property, in which her husband held an interest claiming 1/4th share for herself. The suit was decreed by the IX Additional City Civil Judge, Bangalore, against which one of the defendants preferred RFA No. 156 of 1989 before this Court. The said appeal was dismissed by a reasoned order dated 17th of July, 1989 passed by a Division Bench without issuing notice to the respondents, one out of whom had entered appearance on caveat. In the final decree proceedings that followed, the applicant appears to have been substituted in place of the plaintiff-decree holder on the basis of a Will set up by him. He has now filed this application with a two-fold prayer. The first seeks substitution in place of the plaintiff-deceased respondent 1 in the appeal while the second relates to an amendment of the judgment and decree substituting Sy. No. 202 in place of Sy. No. 212 appearing as Item No. 6 of the plaint schedule property.

3. Learned Counsel for the applicant argued that the prayer for substitution of the applicant in place of the deceased decree-holder was necessary for in the absence of an order to that effect, the Revenue Authorities to whom the matter may be sent for effecting division by metes and bounds may not recognise the applicant as the person entitled to claim and be put in possession of the share, which the deceased decree-holder was entitled to. He urged that since the Trial Court had in the final decree proceedings pending before it already substituted the
applicant as the successor-in-interest of the deceased plaintiff, this Court may have no difficulty in directing a similar substitution in the appeal also. The submission is, in our opinion, wholly misconceived. The question of directing substitution in place of a party to any proceedings remains relevant only till such time the proceedings are not finally disposed of by the Court with whom the same are pending. Once the proceedings are disposed of, the Court becomes functus officio except for the purposes of the statutorily recognised remedies of review and/or correction of accidental slips and errors in terms of Order 47 and Section 152 of the Code of Civil Procedure. It is not disputed that Smt. Bud-damma, the decree-holder died somewhere in 1993 i.e., much after the disposal of the appeal by this Court. That event was for purposes of future stages of the proceedings to be taken note of by the Court or authority before whom the controversy or any part thereof may remain pending for adjudication. The applicant’s entitlement to claim the fruits of the decree granted in favour of his predecessor in interest would not depend upon whether or not he was substituted in place of the deceased at all stages of the litigation previous to ber demise, by the Courts that may have dealt with the said stages. Since the applicant has already been substituted in place of the deceased in the final decree proceedings, it is even otherwise unnecessary to order any substitution afresh. The prayer for substitution is accordingly rejected.

4. That leaves us with the second prayer made in the application for amendment of the judgment and decree passed in favour of the plaintiff-decree holder. Even here, the applicant has considerable difficulty to face. We say so because the power of the Court to correct clerical or arithmetical mistakes in judgments, decrees or orders passed by it or errors arising therein from any accidental slip or omission reserved under Section 152 of the Code of Civil Procedure is subject to what is provided for in Section 153-A of the Code introduced by the Code of Civil Procedure Amendment Act of 1976. The said provision was incorporated to resolve a cleavage in the judicial pronouncements of various High Courts in Country. The High Courts of Patna and Bombay had taken the view that the power to amend a decree or judgment could in cases where the appeals against the same were dismissed under Order 41, Rule 11 of the Code of Civil Procedure be exercised by the Trial Court or the First Appellate Court alone. A contrary view expressed by the High Courts of Andhra Pradesh, Madhya Pradesh, Allahabad, Madras and Calcutta according to which regardless whether the dismissal of the appeal was under Order 41, Rule 11 or under Order 41, Rule 32, the power to amend could be exercised only by the Appellate Court concerned on the principle that the decree passed by the Trial Court merged in that passed by the Appellate Court and what was executable or alterable by amendment was only the final decree passed by tbe last Court in appeal. Section 153-A introduced by way of amendment of the Code is therefore aimed at setting at rest this controversy. It provides that where an Appellate Court dismisses an appeal under Rule 11 of Order 41, the power of the Court to amend, under Section 152, the decree or order appealed against may be exercised by the Court, which had passed the decree or order in the first instance notwithstanding that the dis-

missal of the appeal has had the effect of confirming the decree or order passed by the Court of first instance. The crucial question therefore is whether the dismissal of the appeal by this Court was a dismissal under Order 41, Rule 11, in which case the Trial Court would be competent to exercise the power of amendment under Section 153-A.

5. Order 41, Rule 11 empowers the Appellate Court to dismiss an appeal in what is often described as dismissal in limine after sending for the record if it thinks fit so to do and after hearing the appellant or his pleader. Such dismissal can be ordered without sending notice to the Court from whose decree the appeal was preferred and without sending notice to the respondents or his pleader. Sub-rule (2) of Rule 11 with which we are not for the present concerned empowers the Appellate Court to dismiss an appeal for default of appearance of the appellants on the date the same is called on for hearing. It was contended on behalf of the applicant that a dismissal as envisaged by Order 41, Rule 11(1) must not touch the merits of the case, for once the Appellate Court examines the merits of the controversy and deals with the issues that arise for consideration, the dismissal could not be said to be one in limine as envisaged by Rule 11 of Order 41. Since the order of dismissal in the case at hand was a reasoned order it could not, according to the learned Counsel, be treated as one passed under Order 41, Rule 11(1) of the Code of Civil Procedure no matter the Court had not issued notice either to the Court, from whose judgment the appeal arose for the respondents. We find it difficult to subscribe to that view. Order 41, Rule 11(1) does not necessarily envisage a non-speaking order of dismissal only. Indeed dismissals in limine and by non-speaking orders were not viewed favourably by the Supreme Court especially, where debatable issues arose for consideration. The decision of the Supreme Court in Mahadev Tukaram Vetale and Others v Smt. Sugandha and Another, clearly declared that in cases where an appeal raised triable issues, the same ought not to be dismissed summarily. That was a case where the High Court had dismissed the appeal with one word without dealing with the contentions of disclosing the reasons for their rejection. In Shankar Gopinath Apte v Gangabai Hariharrao Patwardkan, their Lordships were also dealing with a case, where the dismissal of the appeal was unsupported by any reason. The Court frowned upon dismissals by non-speaking orders and observed.-

“We would have been saved the futile exercise of looking at the pleadings and considering the evidence for ourselves if only the High Court had given us the benefit of its views while dismissing the appeal summarily. A brief statement of reasons would have served that purpose. The unspeaking order “Dismissed” which the High Court has passed affords no indication whatsoever as to the reasons which impelled the Court to deal with the appeal before it as unworthy of any serious consideration. In matters involving construction of written instruments where rival interpretations
have more than mere plausibility, the High Court ought to give a brief statement of reasons while dismissing the appeal summarily”.

6. But for the introduction of sub-rule (4) to Rule 11, which now dispenses with recording of reasons while dismissing appeal if such orders are made by the High Courts, tbe legal position as declared in the aforesaid decisions would have continued to enjoin upon the High Courts to record reasons even for dismissals ordered summarily. The introduction of sub-rule (4) to Rule 11 does not however necessarily imply that dismissals can and must always be unsupported by reasons if they are by the High Court and in exercise of powers under sub-rule (1) of Rule 11. While the recording of reasons may have been dispensed with by sub-rule (4) of Rule 11, the nature of the order and the source of power in exercise of which the same is made does not get shifted, only because the Court while directing dismissal of the appeal goes on to state the reasons in support of its order. That is because mere recording of reasons cannot render the order more vulnerable to criticism, than it would be, if no reasons had been indicated. Disclosure of reasons is on the contrary welcome for it demonstrates application of mind by the Court making the order and helps the Court hearing a further appeal against any such order in appreciating the logical basis of the conclusion arrived at. There is no gainsaid that the Appellate Court hearing an appeal under Order 41, Rule 11 is not absolved of its duty to apply its mind to the legal points as well as to the evidence referred to it at the time of arguments. Indeed, it is only if the Court is, after hearing Counsel for the appellant, of the opinion that the case is frivolous and without any merit that an order of dismissal of the appeal is passed without sending notice to the respondents. We have therefore no hesitation in rejecting the arguments that the order of dismissal of the appeal passed by this Court could not be said to be one under Rule 11 of Order 41 only because this Court had while making the said order recorded no matter briefly the reasons in support of the same. What is in our opinion crucial for determining whether an order is referable to Order 41, Rule 11 or Order 41, Rule 32 is whether the Appellate Court had or had not issued a notice to the respondents and the Court from whose decree the appeal was preferred. We have perused the record relating to R.F A. No. 156 of 1989. We find that this Court had at no stage issued any notice either to the respondents or to the Court from whose decree the appeal arose. The appearance of the plaintiff-decree holder on caveat may have helped the Court in making an order but any such appearance would not by itself convert the order into one passed under Order 41, Rule 32 especially when apart from the decree holder-respondent 1, there was one other respondent, who had not appeared and to whom no notice was issued. The dismissal of the appeal was in that view clearly referable to Order 41, Rule 11 only. That being so, the applicant could and ought to approach the Trial Court for the proposed amendment of the judgment and decree in terms of Section 153-A of the Code.

Reserving liberty for him to do so, this application fails and is hereby dismissed.


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