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TMI Blog1957 (4) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... presented to the Subordinate Judge, Asansol, by the decree holder for an amendment of the execution petition by including a prayer for ₹ 932/- as the added interest. In that petition it was stated that the original decree was amended on the 10th July, 1954, by the said court and in accordance with that order of amendment the execution petition should also be amended. It appears that on the 10th July, 1954, that is, after the appeal to this court against the original decree had been dismissed the decree-holder filed a petition before the lower court for amendment of the said decree of the allegation that in the decree that was drawn up interest was allowed up to the institution o the suit and no subsequent interest was mentioned in the said decree, although in the judgment interest was allowed at the rate of six per cent from the date of the loan up to the date of realisation. The lower court thereupon allowed the amendment asked for and by its order No. 35 dated the 10th July, 1954, the decree was amended by allowing interest at 6 per cent from the date of the institution of the suit to the date of the realisation in addition to the interest already allowed. It should be men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Tejbal Bikram Bahadur 14 CWN 667 (D), and on a number of cases decided by this Court, being, the cases of Rameswar Malia v. Bhaba Sundari Debi 11 Cal LJ 81 (E); Srigobind Sing v. Gangatri Pershad Singh 6 Cal LJ 542(F); Uma Sundari Devi v. Bindu Bashini ILR 24 Cal 759 (G). The learned Advocate for the appellants also relied upon the decision of the Bombay High Court in the case of Hussain Sab v. Sitaram Vighneshwar, AIR1953Bom122 . 5. It seems to me that this Court has systematically held that after a decree has been appealed from and the appellate court has passed a final order thereon and had confirmed the same, the original court which passed the decree loses all jurisdiction over the said decree. It has also been held that the appellate court in that case is the only court competent to make an order under Section 152 of the Code of Civil Procedure and the original court which passed the decree had no jurisdiction to do so. In the case of 11 Cal LJ 81 (E), Mookerjee and Vincent JJ., held that the Subordinate Judge who had amended a decree originally made in his court but subsequently modified on appeal by consent of parties in this Court had no jurisdiction to make any orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 206 of the Code of Civil Procedure 1882, which corresponds to Section 152 of the Code of Civil Procedure, 1908. In that judgment reference was made to another decision of Division Bench of this Court ILR Cal. 759 (G) ). There also the same view was taken, namely, mat an order of dismissal of an appeal being a final determination and adjudication on the questions raised in the appeal is a decree, and when an appeal is dismissed under Section 551 of the Civil Procedure Code, the effect practically was to make the decree which was confirmed the final decree to be executed in the suit, and the High Court making such order had power to amend the decree of the lower court which had in effect been confirmed by it so as to bring it in conformity with the judgment which was also confirmed. Their Lordships in the concluding part of their judgment observed as follows: It is an admitted fact that the decree of the District Judge is not in conformity with his judgment. The decree simply directs that the appeal be decreed without specifying in any way the relief given by it. In the judgment it was distinctly held that the plaintiff had proved her title to and possession of the land (plot k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of costs in respect or that appeal was, therefore, granted. An application was thereupon made by the appellant to England stating that he had in fact appeared and had been represented by three Advocates. This fact was not disputed by the other side and thereupon C. C. Ghose, A. C. J. and Patterson, J. passed an order that in the circumstances stated it was quite clear that the omission to file the vakalatnama on behalf of the plaintiff was due to inadvertence, and that the appearance of the learned Advocates for the plaintiff in the said appeal may be recognised and regularised. On receipt of this report from the Deputy Registrar Mukherji and Guha, JJ. passed the following order : In view of the precedent which the office has referred to in its note, dated 6-4-1932, this petition is sent to the Privy Council Department, so that it may be placed before the Bench presided over by the Hon'ble the Chief Justice taking Privy Council matters. The matter then came up before the Hon'ble the Chief Justice and Costello, J. and the following order was passed. Let the decree of this Court be amended by correcting the mistake as prayed for in the petition. 7. Mr. Mitter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . His Lordship gave a number of reasons for his aforesaid conclusion, one of which was that it is quite clear from the judgment and decree of the learned Subordinate Judge that the plaintiff's claim for mesne profits pendente lite and thereafter as made in the plaint was not rejected. On the other hand, His Lordship held, their right to the same was expressly declared and the court exercised its discretion under Order 20, Rule 12(1), Clause (b) and instead of leaving the matter of assessment of mesne profits up to the date of the institution of the suit to a later proceeding in the suit, assessed the same at that time. The court according to Mitter, J. reserved the power to assess mesne profits pendente lite and thereafter till restoration of possession to the plaintiffs at a later stage and this was made manifest by the use of the words at present both in the Judgment and the decree. The other reason given by his Lordship was that the decree in question could be treated as a final decree in respect of mesne profits up to the date of the institution of the suit but a preliminary decree for mesne profits for the period commencing from the date of the institution of the suit ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have been made without jurisdiction. 9. Mr. Mitter then contended before us that this is not a case where the court below had no jurisdiction, but it is a case where there has been an erroneous exercise of jurisdiction. He referred us to the case of Manohar Chandra v. Sudhi Priya 41 CWN 1330 (K). I am unable to accept the said contention of Mr. Mitter. In my opinion after a decree has been appealed from and the appeal court has made a final order in the said appeal either allowing or dismissing the appeal, the lower court ceases to have all jurisdiction over the matter. The decree in effect becomes the decree of the appellate court and the jurisdiction to amend the decree is in the appeal court and not in the court below. The lower court becomes functus officio in the matter. In my opinion, this contention of the learned Advocate for the appellants must fail. 10. The question, however, is what is to be done in this matter. The authorities to which I have referred have laid down that this Court which made the final order in the original appeal still retains the jurisdiction to amend the decree and in fact this Court is the only Court which can make Such an order of amendme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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