Jamini Mohan Roy vs Tripura Gramin Bank and Another

A.P. Singh, J.—Present revision application u/s 115 Code of Civil Procedure, 1908, hereafter for brevity called the Code, has been filed by Plaintiff applicant herein questioning jurisdictional legality and propriety of the judgment and order dated 5.5.1995 in Misc. Civil Case No. 28795 arising out of Title Appeal No. 56 of 1994 passed by Sri D. Purkayastha, District Judge, West Tripura, Agartala thereby rejecting applicant''s prayer for enlargement of time for moving application for amendment of the plaint before the trial Court outside the time which was allowed by that (appellate) Court vide its judgment and decree dated 27.1.1995.

Before entering into the adjudication of the respective contentions made before me in support and opposition of this application it is necessary to notice the brief facts of the case which are relevant for this case.

Title Suit No. 11 of 1990 was filed by the applicant seeking declaration and injunction against the Respondent Bank on the facts that the Bank was tenant of the building belonging to the applicant On Bank''s request the applicant carried out some extension in the building as per the specifications supplied by the Bank within stipulated time but in breach of the agreement the Bank was in the lookout of shifting elsewhere by vacating the tenement. A decree for subsistence of relationship of lessor and lessee between the applicant and the Bank regarding extended portion too and for injunction restrain the Bank from vacating the tenement and obviously for payment of rent was made in the plaint. The suit was contested and the agreement was denied. Plea about non-maintainability of the suit was also taken. It was also alleged that a notice dated 23.12.89 was served on the applicant giving intimation of Bank''s intention of vacating the building under tenancy by 26.12.89 and as per that notice the building was vacated by the Bank mainly due to shortage of accommodation.

Trial Court dismissed the suit on the ground that Bank had already vacated the building in its tenancy before the date of filing of the suit hence in the absence of prayer for payment of damages for the breach of agreement of tenancy no relief either for declaration or for injunction could legally be granted. The trial Court also rejected applicants prayer for permission to amend the plaint for adding/introducing the relief of payment of damages. Applicant''s appeal filed against the judgment and decree of the trial Court too did not find favour with the appellate Court which agreed with judgment and decree of the trial Court in appeal. While maintaining the judgment under appeal the appellate Court found that the applicant had a right to amend his plaint so as to introduce the necessary relief even at the appellate stage. It accordingly directed as under:

So I find that the trial Court had rightly held that the suit is not maintainable in view of the provision of Section 34 of the Specific Relief Act since the Plaintiff did not seek consequential relief which the Plaintiff is entitled to claim in the suit. But, as discussed above I find that application for amendment of the plaint was not accepted by the trial Court on the ground of default of appearance of the Plaintiff or his Advocate when the petition for amendment of the plaint came up for hearing. I have gone through the proposed amendment petition filed by the Plaintiff. It also appears that said petition also does not bear any claim in respect of the damage of compensation as relief in the suit.

Order 6 Rule 17 of the CPC does not debar the Plaintiff to file application for amendment even before the appellate Court subject to certain limitation mentioned therein the provision itself. From the proviso of Sub-section (2) of Section 40 of the Specific Relief Act emphasise that for interest of justice Court should allow the Plaintiff to amend the plaint on such terms as may be just for including such claim.

In view of the aforesaid provision I think it is a fit case to allow the Plaintiff to amend his plaint as prayed for on such term as may be just since the Defendant have committed breach of the contract as embodied in the Exhibit-1.

In view of the aforesaid circumstances I allow the appeal with the aforesaid observations and remand the case to the learned trial Court to dispose of the case in accordance with law. But it is to be mentioned that the Plaintiff must amend his plaint if he thinks fit and proper in accordance with the law within 30 (thirty) days from the date of judgment of this Court and the Plaintiff is to pay cost of Rs. 200.00 (Rupees two hundred) only to the Defendant-Respondents. If the Plaintiff does not file the amendment petition after paying Rs. 200/- (Rupees two hundred) only to the Defendant-Respondent within 30 (thirty) days from the date of this judgment the suit shall stand dismissed by the learned trial Court. If the amendment is filed and allowed by die trial Court in accordance with the law then the trial Court shall proceed with the case as thinks fit and proper.

With these observations the appeal is allowed on contest and send back the case on remand to the trial Court with the aforesaid observations.

No application however was filed by the applicant for amending the plaint within the time allowed by the appellate Court. He moved application before trial Court as well as before the appellate Court respectively on 8.3.95 and 4.3.95 seeking enlargement of time so as to enable him to file the application for amendment. Enlargement of time was sought on the ground that due to illness of the applicant the application could not be filed within the time which was allowed by the appellate Court vide its judgment dated 27.1.95. Trial Court dismissed the application for the reason that it did not lie before him. The appellate Court dismissed the application by the impugned order, interalia on the ground that Section 148 of the Code was not attracted for enlargement of time which was allowed by it in a decree.

Present application has accordingly been filed by the applicant challenging the above order of the appellate Court. Before proceeding further it is important to note that pursuant the judgment rendered by the appellate Court on 27.1.95 a decree was drawn in the terms of the order in the said judgment. Application filed by the applicant on 8.3.95 before the trial Judge was dismissed on the same day and the suit too was dismissed in terms of the appellate judgment and decree.

Application filed by the applicant before the appellate Court was registered as Misc. Case No. 28/95. Objection was filed by the Bank opposing the prayer inter alia on the ground that it was not maintainable as a decree had already been passed by the appellate Court in terms of its order contained in the appellate judgment. The appellate Court agreeing with argument advanced on Bank''s behalf dismissed the application on the ground that Section 148 would not be attracted where time has been allowed by a Court in a decree.

Sri M.K. Bhowmik, argued in support of the revision application that judgment dated 27.1.1995 passed on the appeal of the applicant was a judgment of remand hence it was not a decree but an order contemplated by Rule 23A of Order 41 of the Code so as to bring home his point he also took support from Sub-rule (h) of Rule 1 of Order 43 of the Code which relates to the order against which appeals would lie u/s 104 of the Code. Sub Clause (h) obviously provides for appeal against orders falling in Rules 23 and 23 A of Order 41 of the Code. He also placed reliance on Supreme Court''s judgment in Mahanth Ram Das Vs. Ganga Das, in support of his contention that time allowed by Court (High Court of Patna there) for doing something with the condition that failure to keep the time would result in dismissal of appeal, could be enlarged by that Court (Patna High Court) despite the fact that the application for enlargement of time was filed after expiry of the time which was allowed for the purpose (deposit of deficiency in the Court fees). He also referred to another decision of Calcutta High Court in Lakshmi Bala Chanak Vs. Brojendra Nath Pain and Others, , but at the same time fairly added that the said judgment of Calcutta High Court was not correctly decided in terms of the law laid down by the Supreme Court in Mahanth Ram Das (supra).

The application is opposed by the Bank. Its learned Advocate Sri S. Dutta, contended that Section 148 of the Code has no application as a decree in terms of the judgment and order dated 27.1.95 had been drawn hence the revision called for no interference in view of law laid down by the Supreme Court in Manick Chandra Nandy Vs. Debdas Nandy and Others,

Before examining the credibility of the rival contentions advanced by learned Counsel appearing in this case it is necessary to consider the salient features of the judgment dated 27.1.95 on which both the learned Counsel have placed emphasis for bringing home their respective arguments.

Reading of the relevant part from the judgment of the appellate Court quoted earlier hereinabove would disclose that findings and the views expressed by the Trial Court for dismissing applicants suit was upheld by the appellate Court but benefit of right under Order 6 Rule-17 of the Code, which right as per the appellate Court (rightly so), also available upto the appellate stage was allowed by it in view of the fact that Appellant''s prayer in that regard made at the trial stage, was not rejected by the trial Judge on merits but on the ground on non-appearance of applicant or his counsel for pressing that application. It is further important to note that the appellate Court said nothing about the order passed by the trial Court dismissing applicant''s application for amendment for the reason of default of appearance.

Argument of Sri Bhowmik, learned Counsel for the Petitioner was that the judgment dated 27.1.95 being one essentially of remand did not amount to decree. Relying on Clause (2) of Section 2 of the Code which defines decree it was argued by him that since the said judgment did not finally adjudicate the rights of the parties to the case it could not be a decree but an order covered by Clause (13) of Section 2 of the Code. On the contrary Sri Dutta, would maintain that from the fact that a decree was prepared by the appellate Court in the terms of the judgment dated 27.1.95 there remained no doubt that the time of moving application for the amendment of the plaint was allowed by the appellate Court vide a decree passed by it and not by an order of remand. In support of the argument he placed reliance on the decree itself and on the wordings of Clause (2) of Section 2 and the operative part of the order which has already been quoted hereinabove.

In the light of the law laid down by the Supreme Court in Mahanth Ram Das (supra) Sri Bhowmik, fairly conceded that if the judgment and order dated 27.1.95 passed by the District Judge on applicant''s appeal amounted to a decree then the view expressed by that Court in the impugned order cannot be assailed as the same would be fully justified as per the law declared by the Supreme Court in the said case of Mahanth Ram Das.

From the argument of the applicants learned Counsel it is thus called out that the short question which falls for decision in this case is whether the judgment rendered by the appellate Court in Title Appeal No. 56 of 1994 on 27.1.95 was a decree or it was an order of remand as contemplated by Order 41 Rule 23 A of the Code.

Decree is defined in Clause (2) of Section 2 of the Code it reads as follows:

(2) "Decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the right of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include:

a) any adjudication from which an appeal lies as an appeal from an order, or

b) any order of dismissal for default.

Explanation - A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposed of the suit. It may be partly preliminary and partly final.

Notes - The definition of the term "decree" is amended so that the determination of question u/s 47 may dot amount to a decree.

The definition of the word decree thus excludes orders against which appeal lies u/s 104 read with Order 43 Rule 1 of the Code though it may otherwise amount to decree. Section 104 of the Code enlists the nature of various orders against which appeal would lie with the non-obstante clause-"from no other order". In Clause (1) of the Section appeals are maintainable from any order made under the Rules from which an appeal is expressly allowed. Order 43 Rule 1 provides the list of various orders against which appeals would lie u/s 104 of the Code. Clause (U) of Rule 1 speaks of orders passed under Order 41 Rules 23 and 23 A of the Code. Therefore, it would be an undeniable position that if the judgment dated 27.1.95 is an order under Rule 23 or 23 A of the Code then against it appeal would be maintainable u/s 104 of the Code and for this simple reason it would follow that despite the fact that the appellate Court by the said judgment substantially adjudicated the rights of the parties with regard to the matters in controversy in the suit still it would not be a decree. A judgment which is not a decree is certainly an order as stated in Clause (13) of Section 2 of the Code.

In this context it is necessary to examine Rules 23 and 23 A of Order 43 of the Code in the light of the extracted portion of the judgment dated 27.1.95.

Order XLI relates to the procedure in appeals from original decrees Rules 23, 23A, 25 and 26A relate to appellate Courts power of remand and procedure in relation thereto. Rule 23 reads as follows:

Remand of case by Appellate Court:

When the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, an shall send a copy of its judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.

Rule 23 is attracted in a case where the judgment under appeal has been made on a preliminary point and due to the reversal of the said judgment remand of the suit becomes necessary. This rule has no application to the case as the judgment of the trial Court in appeal in Title Appeal No. 56 of 1994 was rendered on merit and not on preliminary point. Sri Bhowmik also concedes this,

Rule 23A on which too much emphasis has been given by Shri Bhowmik reads as under:

23A. Remand in other cases - Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the appellate Court shall have the same powers as it has under Rule 23.

A bare reading of the Rule would show that for applicability of the rule following attributes must be present in the order:

a) judgment appealed against is not a judgment deciding only a preliminary point,

b) The decree under appeals is reversed,

c) and a retrial (of the suit) has been found necessary by the appellate Court ; and

d) requisite directions as required in Rule 23 are made by the appellate Court in respect of the following:

i) the issues which will be tried by the trial Court in the case as a result of the remand ; and

ii) Copy of judgment passed in appeal is sent to the Court whose judgment decree was in appeal with direction to readmit the suit under its original number and proceed to determine the suit

Apart from the above for the purpose of determining whether the judgment of the appellate Court is a judgment of remand or it is a decree .It has further to be ascertained whether while passing the judgment the appellate Court has made the directions in the light of the provisions of Rules 25 and 26A of Order 41. Rule 25 of the Code requires the trial Court to frame an issue itself and refer the same for decision by the trial Court after taking additional evidence in case the appellate Court finds that the trial Court had failed to frame and try an issue it failed to determine a question of facts which were essential for rightful decision of the suit whereas Rule 26A further cast on duty on the appellate Court to fix a date in the appellate judgment requiring the parties to the appeal to appear in the trial Court, for receiving directions of the trial Court in regard to further proceeding in the suit as a result of the remand.

Now it is necessary to see whether the ingredients of a remand order which are its essential features are present in the appellate judgment dated 27.1.95. By saying the words "So I find that the trial Court has rightly held that the suit is not maintainable in view of the provisions of Section 34 of the Specific Relief Act since the Plaintiff did not seek consequential relief which the Plaintiff is entitled to claim in the suit," the appellate Court confirmed the findings and the decision of dismissal of the suit by the trial Court. This obviously amounts to a judgment of affirmance. This part of the observation by the appellate Court is distinct from the rest of the observations which have been made thereafter in the portion extracted in para 4 of this judgment above. Again in para 11 of its judgment the appellate Court observed as follows:

In view of the aforesaid circumstances I allow the appeal with the aforesaid observations and remand the case to the learned trial Court to dispose of the case in accordance with law.

Shri Bhowmik, has laid too much of emphasis on the above portion of the judgment which according to him would determine its real character that it is a judgment of remand. These words, however, in my opinion cannot be read in isolation. They have to be read in the context of the observations, findings and directions made prior and subsequent to it As already seen above the findings and view expressed by the trial Court in relation to dismissal of the applicants suit for the non-compliance of Section 34 of the Specific Relief Act has been confirmed. That apart by itself in my opinion would constitute a decree of affirmance which substantially and finally determines the claim made by the applicant in the suit as it stood till the time of its disposal by the trial Court and the appeal. No part of the controversy (issues and points) raised by the parties to the suit were require by the appellate Court to be redetermined by the trial Court viewed in this context there remains no scope for doubt mat appellate Court by use of the words "In view of the aforesaid circumstances I allow the appeal with the aforesaid observations and remand the case in the learned trial Court to dispose of the case in accordance with law", did not dilute finding of affirmance and dismissal of the suit by the trial Court which was recorded by the appellate Court in most unambiguous terms. This apart the words on which emphasis has been given by Mr. Bhowmik must also have to be read in the context of the "circumstances" and "observations" used earlier to it and directions given subsequent thereto. The circumstances indicated in that regard are as follows:

I have gone through the proposed amendment petition filed by the Plaintiff. It also appears that said petition also does not bear any claim in respect of damage or compensation as relief in the suit. Order 6 Rule 17 of the CPC does not debar the Plaintiff to file application for amendment even before the appellate Court subject to certain limitation mentioned therein the provision itself. From the proviso of Sub-section (2) of Section 40 of the Specific Relief Act emphasis (es) that for interest of justice Court should allow the Plaintiff to amend the plaint on such terms as may be just for including such claim.

In the back ground of the above opinion expressed about the desirability of necessity for the amendment of the plaint, the appellate Court goes further to make a consequential direction in following words:

In view of the aforesaid provision I think it is fit case to allow the Plaintiff to amend his plaint as prayed for on such terms....

After this for giving proper effect to the said view the direction was made for the remand of the case but the directions given did not reopen the retrial of the suit or any issue or fact which was earlier tried nor it was indicated that the trial Court failed to determine any fact or issue while deciding the suit. The directions given by the appellate Court immediately after it directed for the remand of the case are in the following words:

But it is to be mentioned that the Plaintiff must amend his plaint if he thinks fit and proper in accordance with the law within 30 (thirty) days from the date of the judgment of this Court and the Plaintiff is to pay cost of Rs. 200.00 (Rupees two hundred) only to the Defendant Respondent. If the Plaintiff does not file the amendment petition after paying Rs. 200/- (Rupees two hundred) only to the Defendant-Respondent within 30 (thirty) days from the date of this judgment the suit shall stand dismissed by the learned trial Court. If the amendment (petition) is filed and allowed by the trial Court in accordance with the law then the trial Court shall proceed with the case as thinks fit and proper.

The directions made by the appellate Court are not of the nature as are contemplated by Rules, 23,23A, 25 and 26A of Order 41 of the Code. On the contrary the directions indicate the circumstances in which alone the judgment could be treated as a judgment of remand. The circumstances indicated were as under:

(a) Plaintiff filed an application seeking amendment of the plaint (for introducing relief or damages for the breach of the covenants of. the lease deed ;

(b) The application was filed within thirty days from the date of the judgment of the appellate Court i.e. by 7.1.1995 ;

(c) Cost of rupees two hundred was paid by the Plaintiff to the Defendant-Respondent within the same period of thirty days ; and

(d) the trial Court allows the amendment petition in accordance with law.

In case any of the above conditions put by the appellate Court in its judgment while remanding the case to the trial Court were not fulfilled then the suit had to be dismissed by the trial Court. The trial Court was thus to retry the suit if the conditions indicated herein above were satisfied and not otherwise.

In my opinion where an order of remand is made by appellate Court with the direction to the trial Court to reopen the case only on fulfilment of certain (set out) conditions but without the directions set out in either of the Rules 23, 23A, 25 and 26A of Order 41 of the Code such an order would not amount an order of remand as contemplated by Rule 23 A or by Rule 25 of the Code.

In view of the above discussion it is not correct to say that the appellate judgment is not a judgment which should amount to decree. All the attributes of ''decree'' as it is defined in Clause (2) of Section 2 of the Code are present in the judgment hence the argument to the contrary has no force.

Now it is necessary to notice the case law on the point.

In Kanji Hirjibhai Gondalia Vs. Jivaraj Dharamshi, Gujarat High Court was called upon to examine the question whether determination of preliminary issue amounts to decree u/s 2(2) of the Code. The trial Court held that the notice of eviction served on the tenant by the Plaintiff lawyer was defective hence he was not entitled for relief for recovery of possession of the suit premises because of defective notice. Hence, suit for eviction was not competent and maintainable. The trial Court further directed that the suit should proceed only with respect to claim for monetary relief. In this back ground the Gujarat High Court held that so far as relief for possession involved in the suit was concerned there was a substantive decision/determination of that claim. Hence the decision of the trial Court on the point amounts to final adjudication between the parties in respect of the suit for possession. Hence it amounted to decree as defined in the Code.

In the present case as well as the appellate Court vide its judgment dated 27.1.95 refused the relief of payment of rent and injunction which were claimed in the plaint of the applicant. It however found it necessary in view of Section 40 of the Specific Relief Act, to permit the applicant to introduce, by way of amendment, the relief of damages for the breach of the terms of the lease. For this limited purpose the case was remanded to the trial Court with direction to reopen the suit in case the conditions set out in the judgment were satisfied.

Thus there is marked similarity in the present and Gujarat case.

In The State of Kerala and Others Vs. Annam and Others, a full bench of Kerala High Court held that where a preliminary issue regarding constitutional validity of an impugned provision is decided and thereafter case is posted for further hearing on merits. The decision on the preliminary issue would amount to a preliminary judgment within the meaning of CPC hence appealable u/s 5(1) of the Kerala High Court Act, 1947.

Isac Isac Osman and Others Vs. Valimohmad Isac, Gujarat High Court held that where the appellate Court allowed the appeal and set aside the judgment and decree of the trial Court and remanded the case as a result whereof a decree was drawn, the remand order would amount to a decree and not an order of remand. The relevant observation made by the learned Single Judge of Gujarat High Court needs to be quoted, it reads as under:

Now, if we turn to the order, it is based on the consent given by the learned Advocates appearing for the parties in the Court below. It was for setting aside the order passed by the trial Court. The first part of the order is, therefore, to set aside the order passed by the trial Court by allowing the appeal. Sending back the case to the trial Court is ancillary when the decision of the trial Court is reversed and the appeal is allowed. A decree drawn up on that basis would both within the definition of the term ''decree'' contemplated u/s 2(2) of the CPC inasmuch as it is the formal expression on an adjudication which conclusively determines the rights of the parties arising in that appeal. In a decision where by the decree of the trial Court is set aside would, thus, amount to a decree and is not merely an order of remand so as to call for some finding or the like from the trial Court regarding same point etc. so as to say that the matter had not been finally decided by the Court.

In sum and substance opinion expressed by other High Court on the issues identical to the one involved in this case, as seen herein above is that where a right asserted or claim made in a suit is finally decided by the appellate Court (and is not left for redetermination by the trial Court) despite the fact that the appellate Court has remanded the case to the trial Court for deciding other claims or rights asserted in the suit, the judgment of the appellate Court will not be an order of remand under Orders 23, 23A and 26 of the Code but would be decree u/s 2(2) thereof. Further that where a decree has been drawn by the appellate Court despite the fact that trial Courts decree under appeal has been set aside by it on consent of parties and the case has been remanded for retrial on such consent the judgment would still amount to decree.

Adverting now to the Supreme Court decision in Mahanth Ram Das (supra) relevant observation by the Supreme Court are in para 5 of the report. In the case before the Supreme Court the facts were as follows:

Mahanth Ram Das had filed a suit for declaration that he was appointed Mahanth vide a registered deed dated 21.10.44 and had by that deed the right to manage the Sangat. The trial Court dismissed the suit. An appeal as filed in Patna High Court. The appeal was allowed on the condition that he paid Court fee on the amended relief of possession of properties of the suit. The case was accordingly sent back to trial Court for the purpose of determining the value of properties and for fixing amount of Court fee to be paid. The trial Court accordingly submitted its report and the matter was placed before the High Court for final orders. The High Court determined the valuation of the suit and directed its office to work out the Court fees payable and directed the Plaintiff to pay it in 3 (three) months from the date of the intimation of the amount to their counsel. It was also observed that "if the amount is not paid within the time the appeal shall stand dismissed. If the Court fee is paid within the time given, the appeal will be allowed with costs and the suit brought by the Plaintiff shall stand decreed with costs and the Plaintiff will be granted a decree....". The time allowed was to expire on 8.7.1954. On that date an application for enlargement of time was made. His application was dismissed on the ground that by virtue of earlier order the appeal already stood dismissed due to failure to pay Court fees within the fixed time. Another application filed by the Plaintiff u/s 151 of the code also was dismissed with the observation that a review application lay. Encouraged by the observations the Plaintiff filed fresh application for review under Order 47 Rule 1 read with Section 151 of the code giving reasons. This application of review was dismissed first on the ground that application was not covered by Order 47 Rule 1 and also on the ground that an order for extending time under Sections 148 and 149 of the Code can be made before the expiry of the time allowed and before making of the final order.

The above view of the Patna High Court was disapproved by the Supreme Court on the ground that High Court was not justified in rendering it helpless by passing an order of peremptory character. It also held that Sections 148 and 149 did not rule out power of High Court to enlarge time after expiry of the time allowed earlier by it, while holding so the Supreme Court made an exception in case of conditional decrees. The Supreme Court made following observations in respect of the nature of the appellate order of the High Court.

These orders turn out, often enough to be in-expedient. Such procedural orders, though peremptory (conditional decree apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed.

The observations quoted here in above would thus indicate that where a decree has been drawn (even a conditional decree) in the terms of the appellate judgment the power under Sections 148 and 149 would not come to the aid of the party asking for enlargement of time. This position as observed above is also conceded by Sri Bhowmik. Therefore, in view of the exception curved out by the Supreme Court itself in the case of decree and also in view of the circumstances that the judgment of the appellate Court (dated 27.1.95) amounted to decree (for reasons discussed in the earlier parts of this judgment) and that a decree was in fact drawn by the appellate Court in terms of its aforesaid judgment, the power u/s 148 to grant extension of time for filing application on for seeking amendment of the plaint was no more left with the appellate Court not because it became powerless due to the expiry of the time or due to the fact that the suit was dismissed by the trial Court its order dated 8.3.95 but because the judgment dated 27.1.95 was a decree which could not be modified on an application u/s 148 of the Code. Above view expressed by the appellate Court in the impugned order is not contrary to the view taken by the Supreme Court in Mahanth Ram Das (supra) hence in my opinion the said judgment of the Supreme Court offers no assistance to the applicant. . Relevant observation by the appellate Court in the impugned order is to be found more than once. At page 39 of the Paper Book it was observed as follows:

In a judgment dated 27.1.95 this Court...passed the decree stipulating.... Again at page 41 of the Paper Book the appellate Court observed "when the time is fixed by a decree the Court cannot extend the time.

In my opinion except for some needless observations made in the impugned order the appellate Court was right in rejecting the application. The view expressed by it finds tacit support from the view of the Supreme Court in Mahanth Ram Das (supra) as well.

Since Sri Kar Bhowmik, himself says that Calcutta High Court judgment in Smti. Laxmibala Chanda (supra) is not correctly decided therefore I need not refer it any more.

The judgment in Manik Chandra Nandy (supra) which was cited by Sri Dutta does not deal with the point hence that too needs no discussion. Sri Dutta too agree that it is not attracted for the point involved in this case.

In the result, the revision fails which is accordingly dismissed with costs.