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CASE NO.: Appeal (civil)  768 of 2008

PETITIONER: Hari Prasad Bhuyan

RESPONDENT: Durga Prasad Bhuyan and Ors

DATE OF JUDGMENT: 29/01/2008

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T (Arising out of S.L.P. (C) No.8870 of 2006)

Dr. ARIJIT PASAYAT, J.

        1.      Leave granted.

2.      Challenge in this appeal is to the order passed by a  learned Single Judge of the Gauhati High Court, dismissing  the applications for condonation of delay, setting aside of  abatement and substitution of the heirs of the respondent nos.  13 and 24 in the Second Appeal no.80/1986.  It was held that  the appeal had abated and the judgment and order dated  18.5.1995 passed by the High Court in Second Appeal  no.80/1986 was a nullity and, therefore, application under  Section 152 of the Code of Civil Procedure, 1908 (in short the  \021CPC\022) was not maintainable.   3.      Background facts in a nutshell are as follows:

       Predecessors-in-interest of the appellant filed suit TS  no.26/1978 in the Court of Assistant District Judge No.1,  Gauhati. The said suit, inter alia, was for recovery of  possession, confirmation of possession and declaration of title  over the suit properties and for cancellation of mutation of  names of certain defendants.  According to the appellant, the  said suit specifically set out the cause of action against each  defendant and the prayers in the suit were also specifically  directed against the defendants in respect of the alleged  holding in the scheduled properties. The Trial Court by  judgment dated 11.1.1984 dismissed the suit.  An appeal was  preferred which was numbered as Appeal no.5/1984 and the  same was dismissed by learned District Judge, Gauhati by  order dated 30.1.1986. Plaintiffs filed a Second Appeal no.80  of 1986 in the Gauhati High Court.  During pendency of the  same, some of the plaintiffs died and their legal heirs were  substituted. The Second Appeal filed by the plaintiffs was  allowed by the Gauhati High Court and the suit was decreed.  Plaintiffs filed an Execution Petition before the Trial Court  which was numbered as Title Execution Case No. 4 of 1995.   The Trial Court drew up the decree dated 7.4.1996 as directed  by the High Court, but mistakenly set out only costs without  setting out the reliefs in the suit which had been decreed.  An  S.L.P. (CC No.2275/96) filed by the respondents against the  judgment and order dated 18.8.1995 passed by the High  Court was dismissed by order dated 8.5.1996 with the  following observations:

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\023The Ld. Counsel for the petitioner submits  that the petitioners have been advised to  approach the High Court for recall of the order  and he had instructions to withdraw this  Special Leave Petition. We record the  statements of the Ld Counsel and dismiss the  Special Leave Petition as withdrawn\024.

       In the Execution Petition filed by the appellants objection  under Section 47 CPC was filed on behalf of the heirs of  deceased respondent no.7 and the Trial Court by an order  disposed of the said application, inter alia, observing as  follows:

\023In the light of the above, I am of the  considered view that the decree cannot be  executed in respect of the E Schedule on the  ground of nullity but the decree will be  executable in respect of other properties as  mentioned in the plaint except those in  Schedule E and against the other judgment  debtors.  With this order, the petition stands  disposed of. Steps be taken for execution of the  decree.\024

       On 26.8.1997 the trial Court by two separate orders in  the suit in the execution proceedings observed that decree  should have contained all the reliefs claimed and ordered  accordingly.  On 17.11.1997 the decree was drawn up as per  the order dated 26.8.1997.  Respondent no.6 i.e. Laxmi Ram  Bhuyan filed a Civil Revision (CR No.423/1997) in the Gauhati  High Court questioning orders dated 26.8.1997 and decree  dated 17.11.1997. By order dated 29.9.1999 the High Court  dismissed the Civil Revision. A petition was filed seeking  review of the High Court\022s order dated 29.9.1999 in RP No.6 of  2000.  A Special Leave Petition was filed against the order  dated 10.4.2001, by which the High Court rejected the review  Petition. On 20.11.2002 this Court granted liberty to the  appellants to approach the High Court under Section 152 CPC  for making appropriate corrections in the decree.  The  judgment is reported in Lakshmi Ram Bhuyan vs. Hari Prasad  Bhuyan and Ors. (2003 (1) SCC 197).   It was inter alia noted  as follows:   11. The obligation is cast not only on the trial  court but also on the appellate court. In the  event of the suit having been decreed by the  trial court if the appellate court interferes with  the judgment of the trial court, the judgment  of the appellate court should precisely and  specifically set out the reliefs granted and the  modifications, if any, made in the original  decree explicitly and with particularity and  precision. Order XLI Rule 31 CPC casts an  obligation on the author of the appellate  judgment to state the points for determination,  the decision thereon, the reasons for the  decision and when the decree appealed from is  reversed or varied, the relief to which the  appellant is entitled. If the suit was dismissed  by the trial court and in appeal the decree of  dismissal is reversed, the operative part of the  judgment should be so precise and clear as it  would have been if the suit was decreed by the  trial court to enable a self-contained decree

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being drawn up in conformity therewith. The  plaintiff, being dominus litus, enjoys a free  hand in couching the relief clause in the  manner he pleases and cases are not wanting  where the plaintiff makes full use of the liberty  given to him. It is for the court, decreeing the  suit, to examine the reliefs and then construct  the operative part of the judgment in such  manner as to bring the reliefs granted in  conformity with the findings arrived at on  different issues and also the admitted facts.  The trial court merely observing in the  operative part of the judgment that the suit is  decreed or an appellate court disposing of an  appeal against dismissal of suit observing the  appeal is allowed, and then staying short at  that, without specifying the reliefs to which the  successful party has been found entitled  tantamounts to a failure on the part of the  author of the judgment to discharge obligation  cast on the Judge by the provisions of the  Code of Civil Procedure.

12. In the case at hand, a perusal of the reliefs  prayed for in the plaint shows that the reliefs  are not very happily worded. There are some  reliefs which may not be necessary or may be  uncalled for, though prayed for. The reliefs  may have been considered capable of being  recast or redefined so as to be precise and  specific. May be, that the Court was inclined to  grant some other relief so as to effectually  adjudicate upon the controversy and bring it to  an end. Nothing is spelled out from the  appellate judgment. The trial court, on whom  the obligation was cast by the second appellate  judgment to draw up a decree, was also, as its  order shows, not very clear in its mind and  thought it safe to proceed on an assumption  that all the reliefs sought for in the plaint were  allowed to the plaintiffs. The learned Single  Judge allowing the second appeal, should have  clearly and precisely stated the extent and manner of reliefs to which the plaintiffs were  found to be entitled in his view of the findings  arrived at during the course of the appellate  judgment. The parties, the draftsman of the  decree and the executing court cannot be left  guessing what was transpiring in the mind of  the Judge decreeing the suit or allowing the  appeal without further placing on record the  reliefs to which the plaintiffs are held entitled  in the Opinion of the Judge.

13.     There is yet another infirmity. Ordinarily  the decree should have been drawn up by the  High Court itself. It has not been brought to  the notice of this Court by the learned counsel  for either parties if there are any rules framed  by the High Court which countenance such a  practice as directing the trial court to draw up  a decree in conformity with the judgment of  the High Court.

14. How to solve this riddle? In our opinion,

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the successful party has no other option but to  have recourse to Section 152 CPC which  provides for clerical or arithmetical mistakes in  judgments, decrees or orders or errors arising  therein from any accidental slip or omission  being corrected at any time by the court either  on its own motion or on the application of any  of the parties. A reading of the judgment of the  High Court shows that in its opinion the  plaintiffs were found entitled to succeed in the  suit. There is an accidental slip or omission in  manifesting the intention of the court by  couching the reliefs to which the plaintiffs were  entitled in the event of their succeeding in the  suit. Section 152 enables the court to vary its  judgment so as to give effect to its meaning  and intention. Power of the court to amend its  orders so as to carry out the intention and  express the meaning of the Court at the time  when the order was made was upheld by  Bowen, L.J. in Swire, Re, Mellor v. Swire  subject to the only limitation that the  amendment can be made without injustice or  on terms which preclude injustice. Lindley,  L.J. observed that if the order of the court,  though drawn up, did not express the order as  intended to be made then

\023there is no such magic in passing and  entering an order as to deprive the court  of jurisdiction to make its own records  true, and if an order as passed and  entered does not express the real order of  the court, it would, as it appears to me,  be shocking to say that the party  aggrieved cannot come here to have the  record set right, but must go to the  House of Lords by way of appeal\024.

15. For the foregoing reasons the appeal is  allowed. The order of the trial court drawing  up the decree is set aside. The parties are  allowed liberty of moving the High Court under  Section 152 CPC seeking appropriate  rectification in the judgment of the High Court  so as to clearly specify the extent and manner  of reliefs to which in the opinion of the High  Court the successful party was found entitled  consistently with the intention expressed in  the judgment. The delay which would be  occasioned has to be regretted but is  unavoidable. Once the operative part of the  judgment is rectified there would be no  difficulty in drawing up a decree by the High  Court itself in conformity with the operative  part of the judgment.  If the rules of the High  Court so require, the ministerial act of drawing  up of the decree may be left to be performed by  the trial Court.          4.      Accordingly the application was filed under Section 152  CPC before the High Court. On 26.6.2003, according to the  appellant, he came to know about the death of respondent  nos.13 and 24 in February 1999 and 1993 respectively. This  according to the appellant came to the knowledge of the

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appellant from the report of the Process Server dated  26.6.2003. On 2.8.2003 the appellant filed application for  setting aside the abatement, substitution and for condonation  of delay.  By the impugned order, the learned Single Judge  while dealing with application under Section 152 CPC declared  the decree to be a nullity on account of death of respondent  nos. 13 and 24 and the belated approach for bringing their  legal heirs on record.

5.      Learned counsel for the appellant submitted that the  High Court has missed several relevant factors.  Firstly, in the  earlier round of litigation which resulted in the decision  Lakshmi Ram Bhuyan\022s case (supra) it was not pointed out by  the respondents about the death of respondent no.13 or  respondent no. 24. The present respondents were the  appellants in the appeal before this Court.  They also did not  point out about the death.  There is no decree which was to be  drawn up in line with this Court\022s judgment.   

6.      There is no dispute regarding the assertion of the  appellant that he came to know about the death of  respondents 13 and 24 from the process servers\022 report. Before  this Court earlier also respondents did not disclose about their  death. Since that has not been done, respondents cannot take  any advantage from the belated approach by the appellant.   This according to us is a clear case where the prayer for  condonation of delay in seeking substitution by setting aside  abatement and condonation of delay should have been  accepted by the High Court.  The High Court\022s order is set  aside. The appeal is allowed. There will be no order as to costs.