PETITIONER: SAMARENDRA NATH SINHA & ANR. Vs. RESPONDENT: KRISHNA KUMAR NAG DATE OF JUDGMENT: 01/11/1966 BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. WANCHOO, K.N. MITTER, G.K. CITATION: 1967 AIR 1440 1967 SCR (2) 18 CITATOR INFO : R 1970 SC1717 (17) R 1973 SC 569 (15) ACT: Code of Civil Procedure (Act 5 of 1908), ss. 151, 152-Court mistakenly passing preliminary decree for sale in suit for foreclosure-Subsequently correcting mistake and passing final decree for foreclosure-Power to correct such error. Transfer of Property Act (4 of 1882), s. 52- Purchase of mortgaged property pendente life-Applicability of doctrine of lis pendens. HEADNOTE: A piece of land with some constructions on it situated in district Howrah was mortgaged by conditional sale. The mortgage deed provided that in case of default in payment of the mortgage amount by the due date the sale would become absolute. Subsequently the mortgagor sold his interest to H. As the mortgage amount was not paid by the due date the mortgagee filed a suit for foreclosure which was decreed. The trial court passed a preliminary decree ordering that in case the mortgage amount was not paid within six months the plaintiff would be at liberty to apply for a final decree for sale. H filed an appeal before the High Court which was dismissed. The final decree framed by the trial Court in pursuance of the High Court's orders was for foreclosure. While the above appeal was pending the respondent in execution of a money decree against H purchased the aforesaid mortgaged properties and was given possession thereof. However after the final decree passed by the Court in the mortgage suit the mortgagee was given possession of the properties. The respondent thereupon filed an application under O. 21 r. 100 for restoration of possession to him. This application was rejected by the trial court. The respondent then filed an appeal against the final decree in the High Court. His appeal was entertained and the High Court set aside the trial court's decree on the ground that there was lack of conformity between the preliminary decree which was for sale and the final decree which was for foreclosure. The matter was remanded to the trial court and leave was given to the respondent to participate in the matter. The appellants who in the meanwhile had purchased the mortgagee's interest, appealed.. with certificate under Art. 133(a) and (b) to this Court. HELD : (i) The High Court had held that the respondent had a locus standi in the matter and had directed that he was to be allowed in the remand proceedings to plead that the final decree should be one for sale thus reopening the question of redemption of the mortgage which' had been extinguished by the final decree. The High Court's order as regards these' matters was certainly a final order and therefore the pro- priety of the certificate under Art. 133 granted to the appellants could not be questioned. [24 A-C] (ii)There is 'an inherent power in the -court which passes the judgment to correct a clerical mistake or an error arising from an accidental slip or omission and to vary its judgment so as to give effect to its meaning and intention. On the facts of the present case there could be little doubt that the court had no occasion to pass a preliminary decree for sale and that it was through an accidental slip or inadvertence that in 19 the penultimate part of its judgment the court used the phraseology proper in a mortgage decree for sale. Once this error had crept in the judgment it was repeated in the preliminary decree. This being the position the trial court had the power under s. 151 and s. 152 of the Code of Civil procedure to correct its own error which had crept in the judgment and the preliminary decree and to pass a proper final decree for foreclosure as intended by it. [24 E, 25 E, H] (iii)On the facts of the case it could not be said that the decree represented a wrong decision of the Court. [26 D- E] (iv)The principle of lis pendens applies even to involuntary alienations like court sales. The respondent having purchased the mortgaged property while the appeal against the preliminary decree in respect of the property was pending in the High Court, the doctrine of lis pendens must apply to his purchase and he was therefore bound by the result of the suit. [28 B-D] Case law considered. JUDGMENT:
CIVIL APPELLATE JURISDICTION. Civil Appeal No. 707 of 1964.
Appeal from the judgment and decree dated November 12, 1961,
of the Calcutta High Court in Appeal from Original decree
No. 285 of 1956.
Niren De, Addl. Solicitor-General, N. R. Basu and E.
Udayaratnam, for the appellants.
P.K. Chatterjee, B. d. Mitra and P. K. Bose, for the res-
pondent.
The Judgment of the Court was delivered by
Shelat, J. One Sambhu Charan Das and Sannyashi Charan Das
owned 2 bighas and 18 cottahs of land with a construction
standing thereon, situated in Salkiah, District Howrah. By
a deed of mortgage by conditional sale dated June 2, 1933
the said owners mortgaged the said property to secure
repayment of Rs. 2,750 advanced to them by Panchu Gopal
Srimani, then a minor through his mother, Prabhavati Dassi
as his certificated guardian. The said mortgage, inter
alia, provided that if the mortgage amount was not repaid by
the due date i.e., April 14, 1935 the mortgage would be
considered as a deed of absolute sale and the mortgagee
would be entitled to take possession of the property. On
June 18, 1934 the mortgagors assigned their right, title and
interest 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 Rs. 5,426/10/6, being the amount then due under
the said mortgage and for fixing the time for. payment of
the
20
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 Panchu, then a minor,
without obtaining sanction of the District Judge, the said
mortgage was null and void.
The Trial Court rejected these contentions and passed a pre-
liminary decree on December 23, 1946. The said decree,
inter alia, provided that the mortgage amount due was Rs.
5,426/10/6 and that if the said amount together with costs
of the suit was not paid by the defendants within six months
from the date of the decree the plaintiff would be at
liberty to apply for a final decree. Though the suit was a
foreclosure suit the preliminary decree passed by the Trial
Court was one under O. 34 r. 4(1) of the Code of Civil
Procedure inasmuch as it provided that in default of payment
as aforesaid the plaintiff would be at liberty to apply to
the court for a final decree for sale and that if the sale
proceeds on such sale were not sufficient for payment of the
decreetal amount the plaintiff would be at liberty to apply
for a personal decree against the defendants for the
balance. Against the said preliminary decree the said Hazra
filed an appeal in the High Court at Calcutta raising two
contentions, (1) that the said mortgage was void on account
of sanction not having been obtained by the guardian of the
mortgagee before advancing the said loan and (2) that he
should be permitted to pay the decreetal amount by
instalments. The High Court negatived these contentions and
by its judgment and decree dated March 22, 1951 dismissed
the said appeal and the suit was sent back to the Trial
Court for passing a final decree.
While the said appeal was pending the respondent obtained a
money decree against the said Hazra and commenced execution
proceedings against him. An attachment was levied on the
said mortgaged property and thereafter on June 23, 1950 the
right, title and interest of the said Hazra was put up for
sale. The respondent was the auction purchaser and the
court confirmed the said sale by an order dated February
l5,1951. The said auction sale was in respectof 1 bigha
and 2 cottahs out of the said mortgagee property.According
to the respondent he was given possession of the said
property on May 3, 1951.
21
On March 1, 1954, the said mortgagee, Panchu Gopal Srimani,
applied for a final decree in the said suit. Pending this
application, he assigned his right in the said decree in
favour of the appellants on May 31, 1954. On July 1, 1954
the appellants applied 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 thereupon
filed an application under O. 21 r. 100 of the Code for
restoration of possession to him. On September 27, 1955 the
Trial Court rejected that application. The respondent then
filed on January 3, 1956 a Revision Application against the
said dismissal. On August 23, 1955 the respondent filed a
second application under section 151 of the Code for setting
aside the said final decree. On the same day he also filed
an appeal in the High Court being Appeal No. 285 of 1956
against the said final decree but without impleading the
said mortgagors or the said Hazra, who still was partially
interested in the equity of redemption in the said property.
In the meantime, the Trial Court dismissed the respondent’s
application under section 151 by its order dated February
14, 1956. The High Court also by its order dated May 12,
1961 discharged Civil Rule No. 2 of 1956 issued in the
revision application filed by the respondent against the
dismissal of his application under O. 21 r. 100.
Appeal No. 285 of 1956 came on for hearing on May 12, 1961
before a Division Bench of the High Court. The High Court
set aside the final decree observing :
“It is common case that the preliminary decree
was for sale. The prayer by the respondents
was for a final decree in terms of the
preliminary decree. This was allowed, but the
final decree as drawn up turned out to be one
for
22
foreclosure. It is this disconformity between
the preliminary decree and the final decree
which is being challenged by the appellant.”
The High Court ordered
“We should in the result set aside the final
mortgage decree and allow the appeal by
remitting the matter back to the Court below
to be dealt with in accordance with law. The
appellant is given liberty to participate in
the matter.”
Against the said judgment and decree the appellants applied
for and obtained a certificate under Art. 133(1)(a) and (b).
It is manifest that the High Court’s judgment meant that the
respondent had sufficient interest to maintain the said
appeal and participate in the proceedings before the Trial
Court on the said remand for considering the question
whether the said preliminary decree should be altered or not
and if not whether the respondent had still the right to
redeem the said mortgage, though the time for payment fixed
under the said preliminary decree had expired, that is, six
months from December 23, 1946, long 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 and to. maintain that the question of redemption was
still open and he had the right to redeem the mortgaged
property.
Counsel for the respondent however contended that the certi-
ficate granted by the High Court was not competent and was
liable to be vacated as the judgment passed by the High
Court was not a judgment, decree or final order inasmuch as
what the High Court had done was only to remand the case to
the Trial Court and the Trial Court had yet to decide the
question whether a final decree for foreclosure should be
passed or whether the final decree should
23
be one for sale enabling the respondent to redeem the said
mortgage. In support of his contention he relied on Sardar
Syedna Tahar Saifuddin Saheb v. State of Bombay(1) where
this Court held that the certificate granted therein was
incompetent as it could not be granted in respect of an
interlocutory finding. The order appealed against in that
case was a decision as to the validity of the Bombay
Prevention of Excommunication Act, 1949 (Bombay XLII of
1949). That being one of the several issues the decision
did not dispose of the suit as the rest of the issues still
remained to be tried and it was for this reason that it was
held that the said order was not a judgment, decree or final
order. M/s. Jethanand & Sons v. The State of Uttar
Pradesh(2) was again a case of remand directing the Trial
Court to frame fresh issues and give opportunity to the
parties to produce evidence. In fact it was an order for a
Trial de nova on fresh pleadings and on all issues that
might arise on such pleadings. Evidently any decision given
by the High Court in the course of its order would not be
binding on the Trial Court as the case had to be tried
afresh by it. In these circumstances it was held that the
order of remand was not ‘a judgment, decree or final order
as it did not amount to a final decision relating to the
rights of the parties in dispute.
In our opinion, these decisions cannot help Mr. Chatterjee
as the position here is not the same as in those two
decisions. The, High Court has given its judgment and in
pursuance thereof passed a decree setting aside the said
final decree. If the High Court had held that the
respondent in the circumstances of the case had no right to
maintain his appeal, the final decree would have become a
concluded decree and his right of redemption, 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,
(1) [1958] S.C.R. 1007. (2) [1961] 3
S.C.R. 754.
24
had taken us a little more into confidence by giving some
reasons at least. Nonetheless, it is clear that they
decided both the questions by holding that the respondent
had still sufficient interest in the matter and therefore
had locus standi and by setting aside the final decree and
directing the Trial Court to decide the question as to
whether it could correct the said preliminary decree in
accordance with the directions given by them they held that
the respondent was entitled to participate in those
proceedings and plead that the final decree should be one
for sale and consequently he was entitled to redeem the said
mortgage. There can be no question that the two questions
raised in the appeal before the High Court were disposed of
finally inasmuch as the said final decree was set aside as
not being valid and binding on the respondent and the
question of redemption by him which was extinguished by that
final decree was reopened entitling the respondent to
contend that he had the right to redeem and to hold the said
property. In these circumstances the preliminary objection
raised by Mr. Chatterjee cannot be sustained and the
certificate must be held to be competent.
On merits, two questions were raised : (1) whether the Trial
Court was competent to pass a final decree for foreclosure
though .the preliminary decree was for sale and (2) whether
the respondent had the right to contend that he was entitled
to redeem the said mortgage in view of the fact that he was
the execution purchaser of part of the equity of redemption
pendente lite.
Now, it is well-settled that there is an inherent power in
the court which passed the judgment to correct a clerical
mistake or ,an error arising from an accidental slip or
omission and to vary its judgment so as to give effect to
its meaning and intention. “Every court,” said Bowen L. J.
in Mellor v. Swira(1) “has inherent power over its own
records so long as those records are within its power and
that it can set right any mistake in them. An order even
when passed and entered may be amended by the court so as to
carry out its intention and express the meaning of the court
when the order was made.” In Janakirama Iyer v. Nilakanta
Iyer(2) the decree as drawn up in the High Court had used
the words ” mesne profits” instead of “net profits”. Infact
the use of the words ” mesne profits” 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
(1) 30 Ch. 239. (2) A.I.R.
1962 S.C. 633.
25
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 corrected
subsequently not only in a decree drawn up by a ministerial
officer of the court but even in a judgment pronounced and
signed by the court.
As already pointed out, the mortgage in question was one by
conditional sale empowering the mortgagee to take possession
of the mortgage security if the monies due thereunder were
not paid by the due date. The suit filed by the mortgagee
was also for a foreclosure decree. The tenor of the
judgment of the Trial Court shows that the court meant to
pass such a foreclosure decree especially as the plaint
contained no prayer for a decree for sale or for a personal
decree against the mortgagors or the said Hazra if the sale
proceeds were found insufficient. The written statements of
the defendants did not raise any contention against the
mortgagees’ right for a foreclosure decree, their defence
being only that they were entitled to pay the mortgage
amount by instalments. There can therefore be little doubt
that the court had no occasion to pass a preliminary decree
for sale and that it was through an accidental slip or
inadvertence that in the penultimate part of its judgment
the court used the phraseology proper in a mortgage decree
for sale. Once this error had crept in the judgment it was
repeated in the preliminary decree and this error was not
even noticed by the High Court when it dismissed Hazra’s
appeal and confirmed that decree. The error was later on
noticed by the appellants as is seen from the order passed
by the Trial Court dismissing the respondent’s application
under section 151 for setting aside the final decree. That
order states that the Subordinate Judge who tried the suit
through oversight passed a preliminary decree for sale
overlooking the fact that it was a suit for foreclosure and
possession, that it was also apparent that this mistake of
the Trial Court went unnoticed in the High Court which
confirmed the decree of the Trial Court and
“therefore, this court, when it passed the
final decree being apprised of the apparent
mistake in the form of the preliminary decree,
corrected the initial mistake and did justice
by passing a final decree for foreclosure and
for possession which was -the only scope of
this suit.”
This being the position the Trial Court had the power under
section 151 and section 152 to correct its own error which
had crept in the
Sup. CI/66-3
26
judgment and the preliminary 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 phraseology used in a preliminary
decree for sale. Therefore, there is no question of a wrong
judgment having been passed by the Judge or the preliminary
decree correctly representing that which was wrongly decided
by the Judge. If that had been so, neither the judgment nor
the decree could be corrected and the obvious remedy would
be by way of an appeal. In Barhamdeo Singh v. Harnam
Singh(1) though only one of the defendants appeared and
contested the suit the order made was that “the suit be
decreed with costs.” This was allowed to be altered on the
ground that it was contrary to the intention of the court,
that such an intention had to be gathered from the judgment
as a whole and that the decree following the concluding
portion of the judgment awarding costs against all the
defendants was not in accord with the true intention of the
court.
The second contention is based on the observations of Lord
Herschell in Hatton v. Harris(2) where he stated–
“that there may possibly be cases in which an
application to correct an error of this
description would be too late. The rights of
third parties may have intervened, based upon
the existence of the decree and ignorance of
any circumstances which would tend to shew
that it was erroneous, so as to disentitle the
parties to the suit or those interested in it
to come at so late a period and ask for the
correction
to be made.”
(1) 18 C. W. N. 772.
(2) [1892] A.C. 547 at 558.
27
It is true that the respondent purchased part of the equity
of redemption from his judgment-debtor, Hazra, after the
preliminary decree Was passed. It is also true that that
decree was not in the form of a foreclosure decree but of a
mortgage decree for sale. But according to Lord Herschell’s
observations, the intervening interest of third parties must
be based on the existence of the decree and ignorance of any
circumstances which would tend to show that it was
erroneous. No such thing has happened and indeed it was
never the case of the respondent that he purchased the
interest of the said Hazra because he was aware that a
preliminary decree for sale has been passed and that under
that decree he would be entitled to redeem the mortgaged
property or that he was ignorant of the mistake in that
decree. That being the position it is difficult to see how
the case of Hatton v. Harris() can apply to the present
case. In this view, the 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
redemption of such mortgaged property. An execution
purchaser therefore of the whole or part of the equity of
redemption has the right to redeem the mortgaged property.
Such a right is based on the principle that he steps in the
shoes of his predecessor-in-title and has therefore the same
rights which his predecessor-in-title had before the
purchase. Under section 59A of the Act also all persons who
derive title from the mortgagor are included in the term
“mortgagor” and therefore entitled to redeem. But under
section 52 which incorporates the doctrine of lis pendens,
during the pendency of a suit in which any right to an
immovable property is directly and specifically in question
such a property cannot be transferred or otherwise dealt
with by any party to the suit or proceeding so as to affect
the rights of any
(1) [1892] A.C. 547 at 558.
28
other party -thereto under any decree or order which may be
made therein except under the authority of the court and on
such terms as it may impose. Under the Explanation to that
section the pendency of such a suit commences from the date
of its institution and continues -until it is disposed of by
a final decree or order and complete satisfaction or
discharge of such a decree or order has been obtained. The
purchaser pendente lite under this doctrine is bound by the
result of the litigation on the principle that since the
result must bind the party to it so must it bind the person
deriving his right, title and interest from or through him.
This principle is well illustrated in Radhamadhub Holdar v.
Monohar(1) where the facts were almost similar to those in
the instant case. it is true that section 52 strictly
speaking does not apply to involuntary alienations such as
court sales but it is well-established that the principle of
lis pendens applies to such alienations. (See Nilkant v.
Suresh Chandra(2) and Motilal v. Karrabuldin (3). It
follows that the respondent having purchased from the said
Hazra while the appeal by the said Hazra against the said
preliminary decree was pending in, the High Court, the
doctrine of lis pendens must apply to his purchase and as
aforesaid he was bound by the result of that suit. In the
view we have taken that the final foreclosure decree was
competently passed by the Trial Court, his right to equity
of redemption was extinguished by that decree and he had
therefore no longer any right to redeem the said mortgage.
His appeal against the said final decree was misconceived
and the High Court was in error in allowing it and in
passing the said order of remand directing the Trial Court
to reopen the question of redemption and to allow the
respondent to participate in proceedings to amend the said
preliminary decree.
In the result, we allow the appeal, set aside the judgment
and decree passed by the High Court and restore the judgment
and decree passed by the Trial Court. The respondent will
pay the appellants’ costs all throughout.
G. C.
Appeal allowed.
(1)15 I.A. 97.
(3) 24 I.A. 170.
(2) 12 I.A. 171.
29