Holding

The prayer for condonation of delay and substitution of heirs is within the limitation period and must be allowed; the High Court's order declaring the decree a nullity is set aside.

Summary

The appellant sought to set aside an abatement and substitute the legal heirs of two deceased respondents in a decree, filing the application under Section 152 CPC after learning of the deaths on 26 June 2003. The High Court rejected the application, declaring the decree a nullity on the ground of the respondents' deaths and the delay. The Supreme Court held that the delay was condonable because limitation should be counted from the date of knowledge of death, and the substitution was within the limitation period. Consequently, the High Court's order was set aside and the appellant was granted liberty to approach the High Court under Section 152 CPC for appropriate correction of the decree. No costs were awarded.

Issues considered

Whether the delay in filing the application for substitution of legal heirs and condonation of delay is condonable under the Limitation Act, 1963.
Whether the High Court could declare the decree a nullity on the basis of the respondents' deaths and the alleged delay.
Whether Section 152 of the Code of Civil Procedure, 1908 permits correction of the decree in the circumstances.

Legislation cited

Code of Civil Procedure, 1908s. 152, s. 47, s. Order XLI Rule 31
Limitation Act, 1963s. Schedule Article 121

Subjects

LimitationCondonation of delaySubstitution of legal heirsAbatementSection 152 CPCDecree correctionDeath of partiesCivil Procedure

Judgment

[2008] 2 S.C.R. 160 +-
A HARi PRASAD BHUYAN \- t
v.
DURGA PRASAD BHUYAN AND ORS.
(Civil Appeal No. 768 of 2008)
JANUARY 29, _2008
B
. [DR. ARIJIT PASAYAT AND D.K. JAIN, JJ.]
"-1'
~
Limitation Act, 1963 - Schedule Article 121 - Substitution
oflegal heirs by setting aside abatement - Delay in seeking -
c Court below not condoning the delay- On appeal, held: Delay I

"''
• was liable to be condoned:... Limitation would be counted from
the date of knowledge of the death - Jn the facts of the case
substitution by setting aside abatement was within limitation ~
- period- Code of Civil Procedure, 1908- 0. XX/Ir. 9.
D . A suit filed by predecessor-in-interest of the appellant
_was _decreed by High Court in appeal. The execution court
. while drawing up the decree, by mistake did not set out
_;.,
. the reliefs- in ttie suit which were decreed. Trial court ).

ordered that decree should have contained all the reliefs
E claimed. Thereafter decree was drawn up accordingly.
One· of the respondent-defendants, when reached this
court questioning the order of trial court and the decree )

drawn up according to the direction, the Court granted
liberty to the appellant to approach the High Court u/s 152
F CPC for making appropriate corrections in the decree.
Accordingly application u/s 152 was filed. Thereafter, on l·
26.6.2003 the appellant come to know about the death of
respondent Nos. 13 and 24 from the report of the process
server. On 2.8.2003 appellant filed application for setting
.G aside the abatement, substitution and for condonation of
delay is filing the application. High Court while dealing
with the application u/s 152 declared the decree to be a
nullity on account of death of respondent Nos. 13 and 24
and on account of the delay. Hence the present appeal.
H 160
-+ HARi PRASAD BHUYAN v. DURGA PRASAD BHUYAN 161
AND ORS. '[PASAYAT, J.]

Allowing the appeal, the Court A
HELD: The appellant came to know about the death
of respondents 13 and 24 from the process server's
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 B
approach by the appellant. This is a clear case where the
y.
~ prayer for condonation of delay in seeking substitution
by setting aside abatement and condonation of delay
should have been accepted by the High Court. [Para S]
(167-C, D] c
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 768
of 2008.
From the final Judgment and Order dated 06.10.2005 of
the Gauhati High Court in Misc. Case No. 58 of 2003 in Second D
appeal No. 80 of 1986.

--~
Rana Mukherjee, Azim H. Laskar,Anand, D. Bharat Kumar
·~
and Abhijit Sengupta for the Appellant.
The Judgment of the Court was delivered by E
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 F
,.;...
.. 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 pas·sed
by the High Court in Second Appeal no.80/1986 was a nullity
and, therefore, application under Section 152 of the Code of G
Civil Procedure, 1908 (in short the 'CPC') 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,
H
162 SUPREME COURT REPORTS [2008] 2 S.C.R. +-
A 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
B 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
c 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
0
the Trial' Court which was numbered as Title Execution Case
No. 4of1995. 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.
E 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:
"The Ld. Counsel for the petitioner submits that the
F. 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".
G 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 t"·
'
disposed of the said application, inter alia, observing as follows:
"In the light of the above, I am of the considered view that
H
--+- HARi PRASAD BHUYAN v. DURGA PRASAD BHUYAN 163
AND ORS. [PASAYAT, J.]

the decree cannot be executed in respect of the E A
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." 8
On 26.8.1997 the trial Court by two separate orders in the
r~ 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 c
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's order dated· 29.9.1999 in RP No.6 of 2000. A D
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 E
in Lakshmi Ram Bhuyan vs. Hari Prasad Bhuyan and Ors.
(2003 (1) sec 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 F
,I.,
~ with the judgment of the trial court, the judgment of the
appellate co~rt 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 G
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 H
--.+---
164 SUPREME COURT REPORTS [2008] 2 S.C.R. ;

A 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 being drawn up in conformity
therewith. The plaintiff, being dominus litus, enjoys a free
B 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 '1'"
the suit, to examine the reliefs and then construct the -'i

operative part of the judgment in such manner as to bring
c 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
D 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. ~

·E 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,
F 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,
G 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
H manner of reliefs to which the plaintiffs were found to be
-+-
HARi PRASAD BHUYAN v. DURGA PRASAD BHUYAN 165
AND ORS. [PASAYAT, J.]

"' entitled in his view of the findings arrived at during the
course of the appellate judgment. The parties, the
A

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 B
are held entitled in the Opinion of the Judge.
r
~
13. There is yet another infirmity. Ordinari!Y 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 c
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, the successful
D
party has no other option but to have recourse to Section
.,. 152 CPC which provides for clerical or arithmetical
~ mistakl!s 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 E
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. F
,.\..
'
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, G
-(,
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 H
-+--'
166 SUPREME COURT REPORTS [2008] 2 S.C.R.

A "there 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
B the party aggrieved cannot come here to have 'the
record set right, but must go to the House of Lords '"1
·~
by way of appeal".
15. For the foregoing reasons the appeal is allowed. The
order of the trial court drawing up the decree is set aside.
c 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
D 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
E 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
F appellant, he came to know about the death of respondent ..A
nos.13 and 24 in February 1999 and 1993 respectively. This
according to the appellant came to the knowledge of the
appellant from the report of the Process Server dated 26.6.2003.
On 2.8.2003 the appellant filed application for setting aside the
G 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.
·H
HARi PRASAD BHUYAN v. DURGA PRASAD BHUYAN 167
AND ORS. [PASAYAT, J.]

"' 5. Learned counsel for the appellant submitted that the High A
Court has missed several relevant factors. Firstly, in the earlier
round of litigation which resulted in the decision Lakshmi Ram
Bhuyan's 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 B
.,.. 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's
judgment.
6. There is no dispute regarding the assertion of the
appellant that he came to know about the death of respondents c
13 and 24 from the process servers' 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 D
of delay in seeking substitution by se~ing aside abatement and
-;-
~
condonation of delay should have been accepted by the High
Court. The High Court's order is set aside. The appeal is
allowed. There will be no order as to costs.
K.K.T. Appeal allowed. E