Read Order: B. BORAIAH REP. THR. LRS. Vs. M.G. THIRTHAPRASAD & ORS.

Pankaj Bajpai

New Delhi, February 15, 2022: The Supreme Court has recently opined that in case the decree passed by the Trial Court had merged with the judgment and decree passed by the High Court, then the application for correction could be maintained only before the High Court where the decree had been finally confirmed.

A Division Bench of Justice A.M. Khanwilkar and Justice C.T. Ravikumar observed that the Trial Court had no jurisdiction to entertain the application for correction of a decree passed by the High Court in the first appeal and cross-objection.

The Court, therefore, rejected the application filed before the Trial Court for correction of decree in respect of ‘B’ schedule property to be corrected as ‘C’ schedule property, as not maintainable. 

The issue involved in this case was if an application for correction of the decree, which had been confirmed by the High Court while deciding the appeal filed thereagainst on merits, could be corrected/altered by the Trial Court. This issue was with reference to the purport of Section 153A of the Code of Civil Procedure.

The Apex Court noted that the High Court referred to the contention raised by the appellant(s), but chose to disregard the same on the finding that some other party to the suit had filed application for similar relief insofar as ‘C’ schedule property, referred to in the decree, but came to be rejected, on the finding that ‘C’ schedule property was not subject matter of the appeal at all before the High Court.

However, the fact that the High Court had rejected another application, did not address the legal issue about the jurisdiction of the Trial Court to alter the decree passed by the High Court, and that question needed to be answered keeping in mind the final decree passed by the High Court albeit affirming the decree passed by the Trial Court, added the Court. 

The Apex Court also found that the decree passed by the Trial Court had merged with the judgment and decree passed by the High Court, and in such a case, the application for correction could be maintained only before the High Court where the decree had been finally confirmed in terms of decision. 

Whereas, an application before the Trial Court for correction of such a decree could be maintained only if the appeal was to be decided by the High Court under Rule 11, Order 41 of the Code of Civil Procedure, added the Court. 

The Top Court further noted that the High Court had passed the stated judgment and decree after due consideration of all aspects on merits and not rejection of appeal under Rule 11, Order 41 of the Code of Civil Procedure. 

Hence, the Apex Court allowed the appeal. 

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