9911796707
TMI Blog1966 (11) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... erest in the said property to one Satchindananda Hazra. As the said mortgagors or the said Hazra failed to pay the said mortgage amount on the due date, the mortgagee filed a suit on July 17, 1945 for enforcement of his rights impleading the two mortgagors and the said Hazra as defendants. In that plaint the mortgagee prayed for a decree for ₹ 5,426/10/6, being the amount then due under the said mortgage and for fixing the time for payment of the said amount. The plaint also contained a prayer that on failure to pay the decreetal amount within the time fixed by the court the right of the defendants to redeem the mortgage may be annulled and a decree may be passed giving possession of the mortgaged property. The mortgagors filed a written statement claiming that they should be permitted to pay the mortgage amount by instalments as provided by the Bengal Money Lenders Act. The said Hazra also filed a written statement alleging that he was a bona fide purchaser without notice of the said mortgage. The two mortgagors did not contest the suit and it was only Hazra who contested it contending also that as the loan under the said mortgage was advanced by the guardian of the said Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplied to the Trial Court for being substituted in place of the said Panchu Shrimani. The Trial Court directed notices to be issued on the defendants, that is, the said two mortgagors and the said Hazra and they having raised no objection the court by an order dated January 5, 1955 ordered substitution and then passed a final decree. The said decree, after reciting that the said decretal amount was not paid within the time appointed by the defendants or any other person entitled to redeem the said mortgage, provided as follows:- And it is hereby ordered and declared that the defendant and all persons claiming through or under him are absolutely debarred and foreclosed of and from all rights of redemption of and in the property in the aforesaid preliminary decree mentioned .... and that the defendant shall deliver to the plaintiff quiet and peaceful possession of the said mortgaged property. On April 19, 1955 the appellants applied for and obtained possession of the said mortgaged property. According to the respondent, however he learnt about the possession of the said mortgaged property having been delivered to the appellants for the first time on May 25, 1955 and thereup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the respondent became a purchaser of part of the said equity of redemption on February 15, 1951. There is no dispute that the valuation test for a certificate is satisfied in the present case. The judgment and decree passed by the High Court is also not one of affirmance as the High Court set aside the said final decree. There can be no dispute also that the question whether the appellant who was the auction-purchaser pendente lite had the locus standi to maintain the appeal was finally decided and he was given liberty to participate in the proceedings for correcting the preliminary decree and was enabled thereby to contend that he was still entitled to redeem the said mortgage and retain possession of the mortgaged property. The Trial Court was bound to allow him to participate in those proceedings as the High Court's judgment specifically directed it to deal with the case in accordance with the directions contained in the said judgment. The judgment and decree of the High Court thus, besides setting aside the said final decree meant that the respondent had still sufficient interest entitling him to challenge the appellants' claim to have a final foreclosure decree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption, if any, would have been totally extinguished. It is true that the High Court remitted the case to the Trial Court but it was obviously not an order of remand simpliciter. The decision of the High Court was not on a preliminary issue leaving undecided other issues to be tried by the Trial Court. It will be observed that the respondent was not a party to the suit he could not be because when the preliminary decree was passed he was not on the scene. Though he became an auction-purchaser while the appeal against the preliminary decree was pending, he did not apply for being brought on record. The appellants or their predecessor-in-title would not be aware of his purchase and therefore could not implead him in the suit or in the appeal'. The respondent filed his appeal against the said final decree and two questions arise in that appeal : (1) whether being a purchaser pendente lite he had locus standi to file an appeal and challenge the final decree and (2) whether the Trial Court had jurisdiction to pass the final decree which was not in conformity with the preliminary decree. The judgment of the High Court is unfortunately laconic and one wishes that the learned Judges, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... came to be made probably because while narrating the facts, those words were inadvertently used in the judgment. This court held that the use of the words mesne profits in the context was obviously the result of inadvertence in view of the fact that the decree of the Trial Court had specifically used the words net profits and therefore the decretal order drawn up in the High Court through mistake could be corrected under sections 151 and 152 of the Code even after the High Court had granted certificate and appeals were admitted in this court before the date of the correction. It is true that under O. 20 r. 3 of the Code once a judgment is signed by the Judge it cannot be altered or added to but the rule expressly provides that a correction can be made under section 152. The Rule does not also affect the court's inherent power under section 151. Under section 152, clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the court either on its own motion or on an application by any of the parties. It is thus manifest that errors arising from an accidental slip can be cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decree and pass a proper final decree for foreclosure as intended by it. Mr., Chatterjee, however,, raised two contentions; (1) that a judgment or decree cannot be varied when it correctly represents what the court decided though it may be wrongly nor can the operative or substantive part of the judgment be varied and a different one substituted and (2) that a judgment or decree cannot be varied where there has been intervention of rights of third parties based on the existence of the decree and ignorance of the mistake therein. In such a case the exercise of power to correct the mistake would be inequitable or inexpedient. No one can quarrel with these propositions. But considering the nature of the mortgage, the cause of action and the prayers in the suit, the absence of any contest as regards that cause of action and the prayers, and the tenor of the judgment until it came to its penultimate part, there can be no doubt that the intention of the Trial Court was to pass a preliminary decree for foreclosure as prayed for and that was what the court had decided. It was therefore through an accidental slip that in that final part of the judgment the Subordinate Judge used the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Trial Court had the power to correct the accidental slip which had crept in its judgment and correct that error by passing the final decree in accordance with its true intention. The final decree was passed after notice to the mortgagors and the said Hazra and after hearing them. The respondent was not made a party to that application as the appellants were never made aware of his purchase. The respondent also had not cared to be brought on record in substitution of or in addition to the said Hazra from whom he derived his interest in the equity of redemption. In our view, both the contentions raised by the respondent in this behalf must be rejected. What then is the position of the respondent once it is held that the final decree for foreclosure was validly passed by the Trial Court ? Could he challenge that decree in an appeal against it in the High Court on the basis that he was entitled to redeem the said mortgage? Section 91 of the Transfer of Property Act provides that besides the mortgagor any person other than the mortgagee who has any interest in or charge upon the property mortgaged or in or upon the right to redeem the same may redeem or institute a suit for redemp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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