Satyabadi Pradhan vs Kanhei Pradhan

Dhavle, J.—This is an application in revision against the dismissal of an application filed by the petitioner against the amendment of a Small Cause Court decree behind his back. The petitioner obtained his decree by con-sent on 31st January 1936, and under it though he was the defendant in the suit, he was to get Rs. 260 from the plaintiff by 15th March 1936, with interest at 1 pice per rupee per mensem in default.

In April 1939, the petitioner applied for execution and an attachment was ordered to issue, but the execution case was dismissed on 25th April 1939, for the petitioner''s default in filing process fees. Meanwhile, in February 1938, the opposite party had filed an application under Sections 152 and 151, Civil P.C., asking for the transposition of the words ''plaintiff'' and ''defendant'' in the decree of January 1936. Not only was this application allowed, but the amount was also reduced from Rs. 260 to Rs. 60 by an order of the Small Cause Court Judge, Sri Nagendra Nath Das on 11th August 1938. In the latter part of 1939, plaintiff applied for execution of this amended decree, and on receipt, towards the end of January 1940, of notice of this execution the petitioner made his application, complaining that the amendment was made behind his back. The lower Court has dismissed this application on the ground that there is nothing in Section 152 to suggest that the petitioner is entitled to a notice, and that even if he is entitled to any such, he cannot have the order set aside in the manner he seeks to do. The learned Judge below thought that the petitioner''s remedy "lies elsewhere, if he has any".

The learned advocate for the opposite party before me has not been able to support the point of the observation of the learned Judge below that there is nothing in Section 152 to suggest that the petitioner is entitled to a notice. The amendment was made on an application under Sections 152 and 151, Civil P.C., and there cannot be any gainsaying the fact that when the Court acts in the exercise of its jurisdiction under these Sections it should only do so after notice to the party to be affected by the amendment-all the more so in the case of a decree that was passed on consent. The Court has no inherent power to alter orders passed with the consent of parties unless at least notice is given to the parties affected. I have also not been able to understand why the Court below thought that the petitioner could not have the amendment set aside on the present application, or that his remedy, if any, lay elsewhere.

The learned advocate for the opposite party before me has suggested that the petitioner''s proper remedy was by way of an appeal. But it must be remembered that the suit was a Small Cause Court suit, and that whether in a Small Cause Court suit or in a suit tried as an ordinary suit there can only be one decree. Assuming that the petitioner was not served with a notice of the application for amendment filed by the opposite party in February 1938--and the case of the petitioner is that the notice was fraudulently suppressed--I see no reason at all why the petitioner should not be entitled to ask the Court u/s 151, Civil P.C., to recall the order of amendment. The learned advocate for the opposite party has ingeniously suggested that as the petitioner mentioned not only Section 151, Civil P.C., but also Order 9, Rule 13 in his application, the Court below was right in dismissing his application for failure to comply with Section 17, Small Cause Courts Act. I am not impressed by this argument. It was not properly speaking a case of setting aside a decree passed ex parte, that is to say, on the allegation of the petitioner that notice of the application for amendment was suppressed. The application was very properly based on Section 151, Civil P.C., and the addition of Order 9, Rule 13 must be ignored.

The result is that the order dismissing the petitioner''s application must be set aside and the lower Court directed to proceed in accordance with the law and dispose of the application referred to. The petitioner will also be entitled to the costs incurred by him so far both in this and in the lower Court. Hearing fee in this Court, one gold mohur.