JUDGMENT
Chapman, J.
1. The plaintiff’s case is that, in March 1905, Hargobind Lal and Dund Bahadur Lai took a loan from him and as security mortgaged certain property situated in an estate named Mohunpur Birni bearing a certain touzi number.
2. In 1908 a further loan of Rs. 60 was taken and the same property was again mortgaged. In June 1912 the plaintiff sued upon his mortgage-bonds making the mortgagors and another member of their joint family defendants. Janakdular Saran, a subsequent purchaser, was also made a party. The decree for sale was obtained ex parte on the 4th of July 1912. This decree was made absolute on the 1st of March 1913 and proceedings were taken for putting the property to sale. A sale proclamation was issued fixing the 15th of September 1913 as the date of the sale. On the 18th of August 1913 the defendants filed an objection to the valuation of the property in the sale-proclamation. It was directed that the objection would be heard upon the 8th of November 1913. When the objection petition came to a hearing, the defendants submitted that the property advertised for sale was actually situated in Mouza Mohunpur Birni, whereas in the mortgage-decree it was described as being in Mouza Bishunpur Patal. A reference to the proceedings disclosed the fact that this mistake in the name of the mouza had been made in the plaint and that the mortgage decree had followed the description made in the plaint. On the ground of this misdescription the Court dismissed the execution case. The plaintiff then tiled an application under Sections 152 and 153 of the Code of Civil Procedure for the amendment of the decree, asking that the words “Mohunpur Birni” should be substituted for the words “Bishunpur Patal” in the decree. Upon the objection of the defendants first party this application was rejected and the plaintiff was ordered to file an application for review or a regular suit. The plaintiff then instituted the suit out of which the present appeal arises, asking for a declaration that the proceedings in the former suit were void owing to the mistake in the description of the mortgaged property and asking that the Court should try this suit as an ordinary mortgage suit. To this suit Janakdular Saran, the subsequent purchaser who had been made a party in the previous suit, was made a defendant second party. The suit was not contested by the mortgagor-defendants first party the Suit was contested only by the defendant second party. The defendant second party contested the genuineness of the bond and pleaded that the suit was barred by res judicata and that the suit on such cause of action would not lie. The Munsif dismissed the suit upon the preliminary ground that it was not maintainable. In appeal the learned District Judge has held that such a suit is maintainable and allowed the appeal. His decree directs that the case should be disposed of on the merits. Against this decision the defendant second party, that is to say, the subsequent purchaser, appeals. So far as the defendant first party are concerned, it must be taken that they have acquiesced in the direction that the former proceedings should be declared void and that the matter should be re-opened. They confessed judgment.
3. So far as the defendants second party, the subsequent purchasers, are concerned who are the appellants to this Court, the decree as against them failed in the former suit upon the ground that the mortgaged property was not correctly described in the plaint. It was a bona fide mistake due to the carelessness of the scribe. I am of opinion that the failure of the former suit upon a technical defect should not operate as a bar to the present suit. In the case of Dullabh Jogi v. Narayan Lakhu 4 B.H.C.R. 110 the former suit had been dismissed on the ground of improper valuation and Sir Richard Couch, C.J., said that the former suit having failed by reason only of an informality, it will be contrary to all principles of justice that the parties should be held to be conclusively barred thereby. In Fatteh Singh Luchmee Kooer 13 B.L.R. 37 ; 21 W.R. 105 the dismissal of a suit for multifariousness was held not to tar a decision as to the real issue in the case. In Pursun Gopal Paul v. Poornanund Mullick 21 W.R. 272 the dismissal of a suit on the ground of misjoinder has been held net to be a bar to a subsequent suit on the same cause of action, In Deodhari Singh v. Lala Sewsarun Lal 3 C.L.R 395 it was held that the dismissal of a suit upon the ground that it was badly framed does not operate as res judicata, and in America it has been held that the failure of a suit upon the ground of the misnomer of the defendant would not bar a subsequent suit upon the same cause of action, Tierney v. Abbott 46 Wis. 329. The case does not fall within the principle of Order II, Rule 2, of the First Schedule to the Cede of Civil Procedure. That provision has for its object the improper postponement by a plaintiff of a portion of his claim. In the pleadings in the former suit and that is all that the Court is entitled to refer to), there is nothing to suggest any splitting up of the plaintiff’s claim or that any portion of it was postponed. It was a case merely of a formal defect entirely unconcerned with the merits. The case falls within the principle laid down by Sir James Hannen in Hall v. Hall (1879) 27 W.R. 664 ; 48 L.J.P. 57 ; 40 L.T. 520, that a Court cannot properly be said to hear and decide a matter which it is relieved from hearing or deciding by the plaintiff’s carelessness. The wording of the sections of the Code of Civil Procedure upon the subject of res judicata should not be pressed literally so far as to contravene the principles upon which these sections are based. Non-suit does not operate as a bar. The failure of the former suit would not have barred the present suit in England and, in my opinion, it should not be held to be a bar in India. I would on this principle dismiss the appeal with costs.
4. The judgments of the Courts below have referred to the question whether a Court has jurisdiction to set aside a judgment and decree upon the ground of mistake.
5. Though in the view that I take of the matter it is not necessary to say anything about this point, yet it would perhaps be desirable to very shortly indicate the view which I would be disposed to take.
6. The exercise of interference with judgments on the ground of mistake had its origin in the use of injunctions by the Court of Chancery in England to stay proceedings in the Courts of Common Law.
7. In one department of this jurisdiction the Courts of Chancery used formerly to interfere where the legal judgment was obtained through fraud, mistake or accident and there had been no negligence, laches, or other fault on the part of the person seeking the assistance of the Court of Chancery, or on the part of his agents. The Court of Chancery, even where there had been mistake or accident, would interfere only in a case in which the judgment could not conscientiously be enforced. This practice in Chancery originated at a time when the Law Courts had little or no power to grant new trials for such causes. To prevent a failure of justice the equitable jurisdiction of granting now trials in the Court of Chancery was admitted. Since the fusion of the Courts of Law and Equity and since the Courts in England have acquired very wide powers for the purpose of amending their proceedings or of granting new trials themselves, I cannot find that the exercise of this jurisdiction has continued in England. I say this with great respect to the judgment in Jogeswar, Atha v. Ganga Bishnu Ghattack 8 C.W.N. 473. I am of opinion that that case was wrongly decided:
8. In the case of Bateman v. Willoe (1803) 1 Schedule. & L. 201 at pp. 204, 206 Lord Reedsdale said :
It is not sufficient to show that injustice has been done but that it has been done under circumstances which authorise the Court to interfere. Rules are established, some by the Legislature and some by the Courts themselves, for the purpose of putting an end to litigation, and it is more important that an end should be put to litigation than that justice should be done in every case. The inattention of parties in a Court of Law can scarcely be made a subject for the interference by a Court of Equity. There may be cases cognizable at law and also in equity of which cognizance cannot be effectually taken at law. But without circumstances of that kind I do not know that equity ever does interfere to grant a trial of a matter which has already been discussed in a Court of Law, a matter capable of being discussed and over which a Court of Law had full jurisdiction.
9. To the same effect is the judgment of Sir John Leach, Master of the Rolls, in the case of Harrison v. Nettleship (1833) 2 My. & K. 423 ; 3 L.J. Ch, 86 ; 39 E.R. 1005:
10. The Court of Equity has no jurisdiction to relieve a plaintiff against a judgment at law, where the case in equity proceeds upon a ground equally available at law and in equity, unless the plaintiff can establish some special equitable ground for relief.”
11. It seems to be clear that even prior to the fusion of the Courts of Law and Equity in England a Court of Chancery would not have interfered with the judgment of a Court of Common Law merely on the ground of the carelessness of a party or his clerk.
12. A similar question arose in the Courts of Common Law in the trial of suits of a well-known class, namely, suits for money had and received. The question arose whether in such a suit money could be recovered which the plaintiff had paid under pressure of legal process. It was decided in the case of Marriot v. Hampton (1797) 7 T.R. 269 ; 2 Esp. 546 ; 4 R.R. 439 ; 2 Sm. L.C. (11th Ed.) 421 ; 101 E.R. 969 that the plaintiff could not recover money which he had paid under a judgment against him upon a ground which he might have put forward as his defence in that action. Lord Mansfield, however, in the case of Moses v. Macferlan (1760) 2 Burr. 1005 ; 1 W.B. 219 ; 97 E.R. 676 said: Money may be recovered by a right and legal judgment, and yet the inequity of keeping that money may be manifest upon grounds which could not be used by way of defence against the judgment.” This principle, however, has, in practice, been applied by the Courts of Common Law in England only in cases where the judgment or the legal process has been obtained by fraud. There has been no case in the Courts of Common Law in which a plaintiff who has paid money under the compulsion of a judicial order of a legal process has succeeded in recovering it back, upon the ground that the legal process or judgment had been obtained by mistake.
13. The Courts still interfere in England upon somewhat other principles in two classes of cases. First, where the judgment has been obtained by fraud, and second, where the judgment has proceeded upon consent and the validity of the consent is assailed upon the ground of fraud, misrepresentation, mistake, undue influence and the like. But I would be disposed to say that a Court in India should refuse relief against a judgment or other proceeding at law not founded upon consent upon the ground merely that there has been a mistake in the pleadings or in the conduct of the case.
Roe, J.
14. The facts of this case have been fully stated by my learned brother.
15. The question for decision as I see it is, the plaintiff having already sued and obtained a decree upon a plaint purporting to set forth the transaction in suit, can he now maintain upon the same transaction a second suit, ignoring the first suit and decree, on the ground that through his own carelessness, the transaction was in the first suit so- set forth as to make the previous decree infructuous.
16. We were asked to base our decision upon the passage in Sri Gopal v. Pirthi Singh 24 A. 429 P.C. ; 4, Bom. L.R. 827 ; 6 C.W. N. 883 ; 29 I.A. 118 ; 8 Sar. P.C.J. 293, at page-437: “… an ingenuous point raised by the appellant’s Counsel. He set up at the Bar that all the Judges were mistaken in saying that the bond of February 1874 was not set up by the appellant; that in fact it was set up and that the decree was wrong in not dealing with it. But that decree might have been corrected, if not in accordance with the judgment; or appealed against, if both judgment and decree were wrong; and neither of these courses having been adopted, their Lordships cannot go behind it.”
17. Brett and Carnduff, JJ., relying on this passage, held in Bhonda Singh, v. Dowlat Roy 14 Ind. Cas. 93 ; 15 C.L.J. 675 ; 17 C.W.N. 82 that when there had been a mistake made in the judgment and decree no suit would lie to rectify the mistake. The view taken was based on the principle that such a suit cannot be maintained’ if “the decree in the previous suit which it was sought to set aside was one which the Court had jurisdiction and authority to make.” This principle had already been laid down in Chand Mea v. Srimati Asima Banu 10 C.W.N. 1024. Regarded from this point of view the issue before us would resolve itself into this: “Had the Court in which the first suit was tried jurisdiction to make the decree made?” But I do not think the case should be regarded from this point of view.
18. It may be truly said that upon the proceedings in execution of the previous decree it is res judicata that the property covered by that decree is not identifiable as the property covered by the mortgage document. The decision in execution was probably wrong. Falsa demonstration non nocet. But the decision is now final. Has the plaintiff no remedy? Has he by not. appealing against the order in execution lost his rights? On the principle upon which Sri Gopal’s case 24 A. 429 P.C. ; 4, Bom. L.R. 827 ; 6 C.W. N. 883 ; 29 I.A. 118 ; 8 Sar. P.C.J. 293 was decided, the plaintiff has no right to go behind the decree. But I think he can treat it as foreign to the cause of action on which he now sues.
18. Bhonda Singh’s case 14 Ind, Cas. 93 ; 15 C.L.J. 675 ; 17 C.W.N. 82 is described in the judgment as one ‘ for the purpose of amending a judgment and decree previously passed in a suit between the same parties by another Civil Court, on the ground that a mistake had been made by the Judge of the previous Court in his judgment and decree.” Upon the investigation of my learned brother into the attitude of the English Courts towards cases of this nature, I am compelled to agree with great respect that the learned Chief Justice of Bengal was to some extent in error in Jogeswar Atha’s case 8 C.W.N. 473, if he really intended to say that actions are maintainable in the English Courts to give relief against one’s own carelessness. I have discovered many cases in which such relief has been given upon motion: e. g., Chessum v. Gordon (1901) 1 K.B.D.694 ; 70 L.J.K.B. 394 ; 84 L. L.T. 137 ; 49 W.R. 309, McCaughey v. Stringer (1914) 1 Jr. Rep. 73.
19. There would be no difficulty at all in granting similar relief under Order XLVII, Rule 1 and very little now in stretching Rule 2 to cover the point, but the instances in which actions have been maintained to rectify an error in a decree have all been instances in which the error was due to a mutual mistake or a mistake by the opposite party: Muir v. Jenks(1913) 2 K.B. 412 ; 82 L.J.K.B. 703 ; 108 L. T. 747 ; 67 S.J. 476, Huddersfield Banking Company v. Lister (1695) 2 Ch. D. 573 ; 64 L.J. Ch. 523 ; 12 R. 331 ; 72 L.T. 703 ; 43 W.R. 567, Et HccGenus Omne as closely examined in Golab Koer v. Badshah Bahadnr 2 Ind. Cas. 129 ; 13 C.W.N. 1197 ; 10 C.L.J. 420. But in the view that I take the matter may be regarded from a simpler point of view.
20. The case before us is not a suit to amend or set aside a decree. It is a suit upon a mortgage-bond ignoring as inoperative and void a previous decree not really obtained upon the bond. There has been no suit for the sale of any property situate in Mauza Mohunpur Birnia. There has been no decree based upon the mortgage document which it is now sought to enforce.
21. I cannot see that there is any bar to the plaintiff’s ignoring altogether the suit brought for the sale of property in Bishunpur Patal, and the decree made for the sale of property not identifiable as the property secured by the mortgage document now sued upon.
22. I agree that the appeal be dismissed with costs.