{"id":72148,"date":"1966-11-01T00:00:00","date_gmt":"1966-10-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/samarendra-nath-sinha-anr-vs-krishna-kumar-nag-on-1-november-1966"},"modified":"2016-04-08T17:43:58","modified_gmt":"2016-04-08T12:13:58","slug":"samarendra-nath-sinha-anr-vs-krishna-kumar-nag-on-1-november-1966","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/samarendra-nath-sinha-anr-vs-krishna-kumar-nag-on-1-november-1966","title":{"rendered":"Samarendra Nath Sinha & Anr vs Krishna Kumar Nag on 1 November, 1966"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Samarendra Nath Sinha & Anr vs Krishna Kumar Nag on 1 November, 1966<\/div>\n
Equivalent citations: 1967 AIR 1440, \t\t 1967 SCR (2)\t 18<\/div>\n
Author: Shelat<\/div>\n
Bench: Shelat, J.M.<\/div>\n
           PETITIONER:\nSAMARENDRA NATH SINHA & ANR.\n\n\tVs.\n\nRESPONDENT:\nKRISHNA KUMAR NAG\n\nDATE OF JUDGMENT:\n01\/11\/1966\n\nBENCH:\nSHELAT, J.M.\nBENCH:\nSHELAT, J.M.\nWANCHOO, K.N.\nMITTER, G.K.\n\nCITATION:\n 1967 AIR 1440\t\t  1967 SCR  (2)\t 18\n CITATOR INFO :\n R\t    1970 SC1717\t (17)\n R\t    1973 SC 569\t (15)\n\n\nACT:\nCode of Civil Procedure (Act 5 of 1908), ss. 151,  152-Court\nmistakenly  passing preliminary decree for sale in suit\t for\nforeclosure-Subsequently  correcting  mistake  and   passing\nfinal decree for foreclosure-Power to correct such error.\nTransfer  of  Property Act (4 of 1882), s. 52-\tPurchase  of\nmortgaged  property pendente life-Applicability of  doctrine\nof lis pendens.\n\n\n\nHEADNOTE:\nA  piece of land with some constructions on it\tsituated  in\ndistrict  Howrah  was mortgaged by  conditional\t sale.\t The\nmortgage deed provided that in case of default in payment of\nthe  mortgage amount by the due date the sale  would  become\nabsolute.   Subsequently the mortgagor sold his interest  to\nH.  As the mortgage amount was not paid by the due date\t the\nmortgagee  filed a suit for foreclosure which  was  decreed.\nThe trial court passed a preliminary decree ordering that in\ncase the mortgage amount was not paid within six months\t the\nplaintiff  would be at liberty to apply for a  final  decree\nfor sale.  H filed an appeal before the High Court which was\ndismissed.   The final decree framed by the trial  Court  in\npursuance  of the High Court's orders was  for\tforeclosure.\nWhile  the  above  appeal  was\tpending\t the  respondent  in\nexecution  of  a  money\t decree\t against  H  purchased\t the\naforesaid  mortgaged  properties and  was  given  possession\nthereof.  However after the final decree passed by the Court\nin  the mortgage suit the mortgagee was given possession  of\nthe   properties.    The  respondent  thereupon\t  filed\t  an\napplication under O. 21 r. 100 for restoration of possession\nto  him.  This application was rejected by the trial  court.\nThe respondent then filed an appeal against the final decree\nin the High Court.  His appeal was entertained and the\tHigh\nCourt set aside the trial court's decree on the ground\tthat\nthere was lack of conformity between the preliminary  decree\nwhich  was  for\t sale and the final  decree  which  was\t for\nforeclosure.  The matter was remanded to the trial court and\nleave  was  given to the respondent to\tparticipate  in\t the\nmatter.\t  The appellants who in the meanwhile had  purchased\nthe mortgagee's interest, appealed.. with certificate  under\nArt. 133(a) and (b) to this Court.\nHELD : (i) The High Court had held that the respondent had a\nlocus  standi in the matter and had directed that he was  to\nbe allowed in the remand proceedings to plead that the final\ndecree should be one for sale thus reopening the question of\nredemption  of the mortgage which' had been extinguished  by\nthe final decree.  The High Court's order as regards  these'\nmatters\t was certainly a final order and therefore the\tpro-\npriety\tof  the certificate under Art. 133  granted  to\t the\nappellants could not be questioned. [24 A-C]\n(ii)There is 'an inherent power in the -court which  passes\nthe  judgment  to  correct a clerical mistake  or  an  error\narising from an accidental slip or omission and to vary\t its\njudgment so as to give effect to its meaning and  intention.\nOn the facts of the present case there could be little doubt\nthat the court had no occasion to pass a preliminary  decree\nfor  sale  and\tthat it was through an\taccidental  slip  or\ninadvertence that in\n19\nthe  penultimate  part of its judgment the  court  used\t the\nphraseology proper in a mortgage decree for sale.  Once this\nerror  had  crept  in the judgment it was  repeated  in\t the\npreliminary decree.  This being the position the trial court\nhad  the power under s. 151 and s. 152 of the Code of  Civil\nprocedure  to correct its own error which had crept  in\t the\njudgment  and  the preliminary decree and to pass  a  proper\nfinal decree for foreclosure as intended by it. [24 E, 25 E,\nH]\n(iii)On the facts of the case it could not be said that\nthe decree represented a wrong decision of the Court. [26 D-\nE]\n(iv)The\t  principle   of  lis  pendens\tapplies\t  even\t to\ninvoluntary  alienations like court sales.   The  respondent\nhaving\tpurchased  the mortgaged property while\t the  appeal\nagainst\t the preliminary decree in respect of  the  property\nwas  pending in the High Court, the doctrine of lis  pendens\nmust apply to his purchase and he was therefore bound by the\nresult of the suit. [28 B-D]\nCase law considered.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION.  Civil Appeal No. 707 of 1964.
\nAppeal from the judgment and decree dated November 12, 1961,
\nof  the Calcutta High Court in Appeal from  Original  decree
\nNo. 285 of 1956.\n<\/p>\n
Niren  De,  Addl.   Solicitor-General, N.  R.  Basu  and  E.
\nUdayaratnam, for the appellants.\n<\/p>\n
P.K. Chatterjee, B. d. Mitra and P. K. Bose, for the res-
\npondent.\n<\/p>\n
The Judgment of the Court was delivered by
\nShelat,\t J. One Sambhu Charan Das and Sannyashi\t Charan\t Das
\nowned  2 bighas and 18 cottahs of land with  a\tconstruction
\nstanding thereon, situated in Salkiah, District Howrah.\t  By
\na  deed of mortgage by conditional sale dated June  2,\t1933
\nthe  said  owners  mortgaged the  said\tproperty  to  secure
\nrepayment  of  Rs. 2,750 advanced to them  by  Panchu  Gopal
\nSrimani,  then a minor through his mother, Prabhavati  Dassi
\nas  his\t certificated guardian.\t The  said  mortgage,  inter
\nalia, provided that if the mortgage amount was not repaid by
\nthe  due  date i.e., April 14, 1935 the\t mortgage  would  be
\nconsidered  as\ta deed of absolute sale\t and  the  mortgagee
\nwould  be entitled to take possession of the  property.\t  On
\nJune 18, 1934 the mortgagors assigned their right, title and
\ninterest  in the said property to one Satchindananda  Hazra.
\nAs  the said mortgagors or the said Hazra failed to pay\t the
\nsaid mortgage amount on the due date, the mortgagee filed  a
\nsuit  on  July\t17,  1945  for\tenforcement  of\t his  rights
\nimpleading  the\t two  mortgagors  and  the  said  Hazra\t  as
\ndefendants.   In  that\tplaint the mortgagee  prayed  for  a
\ndecree\tfor Rs. 5,426\/10\/6, being the amount then due  under
\nthe  said mortgage and for fixing the time for.\t payment  of
\nthe
\n20<\/span>
\nsaid  amount.\tThe plaint also contained a prayer  that  on
\nfailure to pay the decreetal amount within the time fixed by
\nthe court the right of the defendants to redeem the mortgage
\nmay be annulled and a decree may be passed giving possession
\nof  the mortgaged property.” The mortgagors filed a  written
\nstatement claiming that they should be permitted to pay\t the
\nmortgage  amount  by instalments as provided by\t the  Bengal
\nMoney  Lenders\tAct.  The said Hazra also  filed  a  written
\nstatement alleging that he was a bona fide purchaser without
\nnotice\tof  the said mortgage.\tThe two mortgagors  did\t not
\ncontest\t the  suit and it was only Hazra  who  contested  it
\ncontending also that as the loan under the said mortgage was
\nadvanced  by the guardian of the said Panchu, then a  minor,
\nwithout\t obtaining sanction of the District Judge, the\tsaid
\nmortgage was null and void.\n<\/p>\n
The Trial Court rejected these contentions and passed a pre-
\nliminary  decree  on December 23, 1946.\t  The  said  decree,
\ninter  alia, provided that the mortgage amount due  was\t Rs.
\n5,426\/10\/6  and that if the said amount together with  costs
\nof the suit was not paid by the defendants within six months
\nfrom  the  date\t of the decree the  plaintiff  would  be  at
\nliberty to apply for a final decree.  Though the suit was  a
\nforeclosure suit the preliminary decree passed by the  Trial
\nCourt  was  one\t under O. 34 r. 4(1) of the  Code  of  Civil
\nProcedure inasmuch as it provided that in default of payment
\nas  aforesaid the plaintiff would be at liberty to apply  to
\nthe  court for a final decree for sale and that if the\tsale
\nproceeds on such sale were not sufficient for payment of the
\ndecreetal amount the plaintiff would be at liberty to  apply
\nfor  a\tpersonal  decree  against  the\tdefendants  for\t the
\nbalance.  Against the said preliminary decree the said Hazra
\nfiled  an appeal in the High Court at Calcutta\traising\t two
\ncontentions, (1) that the said mortgage was void on  account
\nof sanction not having been obtained by the guardian of\t the
\nmortgagee  before  advancing the said loan and (2)  that  he
\nshould\t be  permitted\tto  pay\t the  decreetal\t amount\t  by
\ninstalments.  The High Court negatived these contentions and
\nby  its judgment and decree dated March 22,  1951  dismissed
\nthe  said  appeal and the suit was sent back  to  the  Trial
\nCourt for passing a final decree.\n<\/p>\n
While the said appeal was pending the respondent obtained  a
\nmoney decree against the said Hazra and commenced  execution
\nproceedings  against him.  An attachment was levied  on\t the
\nsaid mortgaged property and thereafter on June 23, 1950\t the
\nright,\ttitle and interest of the said Hazra was put up\t for
\nsale.\tThe  respondent was the auction\t purchaser  and\t the
\ncourt  confirmed  the said sale by an order  dated  February
\nl5,1951.  The said auction sale was in respectof 1 bigha
\nand  2 cottahs out of the said mortgagee  property.According
\nto  the\t respondent  he was given  possession  of  the\tsaid
\nproperty on May 3, 1951.\n<\/p>\n
21<\/span><\/p>\n
On March 1, 1954, the said mortgagee, Panchu Gopal  Srimani,
\napplied\t for a final decree in the said suit.  Pending\tthis
\napplication,  he  assigned his right in the said  decree  in
\nfavour\tof the appellants on May 31, 1954.  On July 1,\t1954
\nthe  appellants\t applied  to  the  Trial  Court\t for   being
\nsubstituted in place of the said Panchu Shrimani.  The Trial
\nCourt directed notices to be issued on the defendants,\tthat
\nis,  the  said two mortgagors and the said  Hazra  and\tthey
\nhaving\traised\tno  objection the court by  an\torder  dated
\nJanuary 5, 1955 ordered substitution and then passed a final
\ndecree.\t  The  said  decree, after reciting  that  the\tsaid
\ndecretal  amount was not paid within the time  appointed  by
\nthe  defendants or any other person entitled to\t redeem\t the
\nsaid mortgage, provided as follows:-\n<\/p>\n
\t      “And  it is hereby ordered and  declared\tthat
\n\t      the defendant and all persons claiming through
\n\t      or  under\t him  are  absolutely  debarred\t and
\n\t      foreclosed   of\tand  from  all\t rights\t  of\n<\/p><\/blockquote>\n
\t      -redemption  of  and in the  property  in\t the
\n\t      aforesaid\t preliminary decree  mentioned\t….
\n\t      and  that the defendant shall deliver  to\t the
\n\t      plaintiff quiet and peaceful possession of the
\n\t      said mortgaged property.”\n<\/p><\/blockquote>\n
On  April 19, 1955 the appellants applied for  and  obtained
\npossession of the said mortgaged property.  According to the
\nrespondent,  however he learnt about the possession  of\t the
\nsaid  mortgaged\t property  having  been\t delivered  to\t the
\nappellants for the first time on May 25, 1955 and  thereupon
\nfiled  an  application under O. 21 r. 100 of  the  Code\t for
\nrestoration of possession to him.  On September 27, 1955 the
\nTrial Court rejected that application.\tThe respondent\tthen
\nfiled on January 3, 1956 a Revision Application against\t the
\nsaid  dismissal.  On August 23, 1955 the respondent filed  a
\nsecond application under section 151 of the Code for setting
\naside the said final decree.  On the same day he also  filed
\nan  appeal  in the High Court being Appeal No. 285  of\t1956
\nagainst\t the  said final decree but without  impleading\t the
\nsaid  mortgagors or the said Hazra, who still was  partially
\ninterested in the equity of redemption in the said property.
\nIn the meantime, the Trial Court dismissed the\trespondent’s
\napplication  under section 151 by its order  dated  February
\n14,  1956.  The High Court also by its order dated  May\t 12,
\n1961  discharged  Civil\t Rule No. 2 of 1956  issued  in\t the
\nrevision  application  filed by the respondent\tagainst\t the
\ndismissal of his application under O. 21 r. 100.
\nAppeal\tNo. 285 of 1956 came on for hearing on May 12,\t1961
\nbefore\ta Division Bench of the High Court.  The High  Court
\nset aside the final decree observing :\n<\/p>\n
\t      “It is common case that the preliminary decree
\n\t      was  for sale.  The prayer by the\t respondents
\n\t      was  for\ta  final  decree  in  terms  of\t the
\n\t      preliminary decree.  This was allowed, but the
\n\t      final decree as drawn up turned out to be\t one
\n\t      for
\n\t      22<\/span>
\n\t      foreclosure.  It is this disconformity between
\n\t      the  preliminary decree and the  final  decree
\n\t      which is being challenged by the appellant.”
\n\t      The High Court ordered
\n\t      “We  should in the result set aside the  final
\n\t      mortgage\tdecree\tand  allow  the\t appeal\t  by
\n\t      remitting\t the matter back to the Court  below
\n\t      to be dealt with in accordance with law.\t The
\n\t      appellant\t is given liberty to participate  in
\n\t      the matter.”\n<\/p><\/blockquote>\n
Against the said judgment and decree the appellants  applied
\nfor and obtained a certificate under Art. 133(1)(a) and (b).
\nIt is manifest that the High Court’s judgment meant that the
\nrespondent  had\t sufficient interest to\t maintain  the\tsaid
\nappeal\tand participate in the proceedings before the  Trial
\nCourt  on  the\tsaid remand  for  considering  the  question
\nwhether the said preliminary decree should be altered or not
\nand  if\t not whether the respondent had still the  right  to
\nredeem the said mortgage, though the time for payment  fixed
\nunder the said preliminary decree had expired, that is,\t six
\nmonths\tfrom December 23, 1946, long before  the  respondent
\nbecame a purchaser of part of the said equity of  redemption
\non  February  15,  1951.   There  is  no  dispute  that\t the
\nvaluation test for a certificate is satisfied in the present
\ncase.\tThe judgment and decree passed by the High Court  is
\nalso  not one of affirmance as the High Court set aside\t the
\nsaid  final decree.  There can be no dispute also  that\t the
\nquestion whether the appellant who was the auction-purchaser
\npendente  lite had the locus standi to maintain\t the  appeal
\nwas finally decided and he was given liberty to\t participate
\nin the proceedings for correcting the preliminary decree and
\nwas enabled thereby to contend that he was still entitled to
\nredeem\tthe  said  mortgage and\t retain\t possession  of\t the
\nmortgaged property.  The Trial Court was bound to allow\t him
\nto  participate\t in those proceedings as  the  High  Court’s
\njudgment  specifically directed it to deal with the case  in
\naccordance  with  the  directions  contained  in  the\tsaid
\njudgment.   The judgment and decree of the High Court  thus,
\nbesides\t setting aside the said final decree meant that\t the
\nrespondent  had still sufficient interest entitling  him  to
\nchallenge the appellants’ claim to have a final\t foreclosure
\ndecree and to. maintain that the question of redemption\t was
\nstill  open  and he had the right to  redeem  the  mortgaged
\nproperty.\n<\/p>\n
Counsel for the respondent however contended that the certi-
\nficate\tgranted by the High Court was not competent and\t was
\nliable\tto  be vacated as the judgment passed  by  the\tHigh
\nCourt was not a judgment, decree or final order inasmuch  as
\nwhat the High Court had done was only to remand the case  to
\nthe  Trial Court and the Trial Court had yet to\t decide\t the
\nquestion  whether a final decree for foreclosure  should  be
\npassed or whether the final decree should
\n23<\/span>
\nbe  one for sale enabling the respondent to redeem the\tsaid
\nmortgage.  In support of his contention he relied on  Sardar
\nSyedna\tTahar  Saifuddin Saheb v. State of  Bombay<\/a>(1)  where
\nthis  Court  held that the certificate granted\ttherein\t was
\nincompetent  as\t it could not be granted in  respect  of  an
\ninterlocutory  finding.\t The order appealed against in\tthat
\ncase  was  a  decision\tas to the  validity  of\t the  Bombay
\nPrevention  of\tExcommunication Act, 1949  (Bombay  XLII  of
\n1949).\t That being one of the several issues  the  decision
\ndid not dispose of the suit as the rest of the issues  still
\nremained to be tried and it was for this reason that it\t was
\nheld that the said order was not a judgment, decree or final
\norder.\t M\/s.\tJethanand  &  Sons v.  The  State  of  Uttar
\nPradesh<\/a>(2)  was again a case of remand directing  the  Trial
\nCourt  to  frame fresh issues and give\topportunity  to\t the
\nparties to produce evidence.  In fact it was an order for  a
\nTrial  de  nova on fresh pleadings and on  all\tissues\tthat
\nmight arise on such pleadings.\tEvidently any decision given
\nby  the High Court in the course of its order would  not  be
\nbinding\t on  the  Trial Court as the case had  to  be  tried
\nafresh\tby it.\tIn these circumstances it was held that\t the
\norder  of remand was not ‘a judgment, decree or final  order
\nas  it\tdid not amount to a final decision relating  to\t the
\nrights of the parties in dispute.\n<\/p>\n
In  our opinion, these decisions cannot help Mr.  Chatterjee
\nas  the\t position  here\t is not the same  as  in  those\t two
\ndecisions.   The, High Court has given its judgment  and  in
\npursuance  thereof  passed a decree setting aside  the\tsaid
\nfinal  decree.\t If  the  High\tCourt  had  held  that\t the
\nrespondent in the circumstances of the case had no right  to
\nmaintain  his appeal, the final decree would have  become  a
\nconcluded decree and his right of redemption, if any,  would
\nhave  been totally extinguished.  It is true that  the\tHigh
\nCourt  remitted\t the  case to the Trial\t Court\tbut  it\t was
\nobviously not an order of remand simpliciter.  The  decision
\nof  the\t High Court was not on a preliminary  issue  leaving
\nundecided  other issues to be tried by the Trial Court.\t  It
\nwill be observed that the respondent was not a party to\t the
\nsuit-he could not be because when the preliminary decree was
\npassed\the  was\t not  on the scene.   Though  he  became  an
\nauction-purchaser  while the appeal against the\t preliminary
\ndecree\twas pending, he did not apply for being\t brought  on
\nrecord.\t The appellants or their predecessor-in-title  would
\nnot be aware of his purchase and therefore could not implead
\nhim in the suit or in the appeal’.  The respondent filed his
\nappeal against the said final decree and two questions arise
\nin that appeal : (1) whether being a purchaser pendente lite
\nhe  had\t locus standi to file an appeal\t and  challenge\t the
\nfinal\tdecree\t and  (2)  whether  the\t Trial\t Court\t had
\njurisdiction  to  pass\tthe final decree which\twas  not  in
\nconformity with the preliminary decree. The judgment of\t the
\nHigh Court is unfortunately laconic and one wishes that\t the
\nlearned Judges,
\n(1) [1958] S.C.R. 1007.\t\t\t       (2) [1961]  3
\nS.C.R. 754.\n<\/p>\n
24<\/span><\/p>\n
had  taken us a little more into confidence by\tgiving\tsome
\nreasons\t at  least.   Nonetheless, it  is  clear  that\tthey
\ndecided\t both the questions by holding that  the  respondent
\nhad  still sufficient interest in the matter  and  therefore
\nhad  locus standi and by setting aside the final decree\t and
\ndirecting  the\tTrial  Court to decide the  question  as  to
\nwhether\t it  could correct the said  preliminary  decree  in
\naccordance with the directions given by them they held\tthat
\nthe   respondent  was  entitled\t to  participate  in   those
\nproceedings  and plead that the final decree should  be\t one
\nfor sale and consequently he was entitled to redeem the said
\nmortgage.   There can be no question that the two  questions
\nraised in the appeal before the High Court were disposed  of
\nfinally\t inasmuch as the said final decree was set aside  as
\nnot  being  valid  and binding on  the\trespondent  and\t the
\nquestion of redemption by him which was extinguished by that
\nfinal  decree  was  reopened  entitling\t the  respondent  to
\ncontend that he had the right to redeem and to hold the said
\nproperty.  In these circumstances the preliminary  objection
\nraised\tby  Mr.\t Chatterjee  cannot  be\t sustained  and\t the
\ncertificate must be held to be competent.\n<\/p>\n
On merits, two questions were raised : (1) whether the Trial
\nCourt  was competent to pass a final decree for\t foreclosure
\nthough .the preliminary decree was for sale and (2)  whether
\nthe respondent had the right to contend that he was entitled
\nto redeem the said mortgage in view of the fact that he\t was
\nthe execution purchaser of part of the equity of  redemption
\npendente lite.\n<\/p>\n
Now,  it is well-settled that there is an inherent power  in
\nthe  court which passed the judgment to correct\t a  clerical
\nmistake\t or  ,an error arising from an\taccidental  slip  or
\nomission  and to vary its judgment so as to give  effect  to
\nits meaning and intention.  “Every court,” said Bowen L.  J.
\nin  Mellor  v.\tSwira(1) “has inherent power  over  its\t own
\nrecords\t so long as those records are within its  power\t and
\nthat  it can set right any mistake in them.  An\t order\teven
\nwhen passed and entered may be amended by the court so as to
\ncarry out its intention and express the meaning of the court
\nwhen  the order was made.” In Janakirama Iyer  v.  Nilakanta
\nIyer<\/a>(2)\t the decree as drawn up in the High Court  had\tused
\nthe words ” mesne profits” instead of “net profits”.  Infact
\nthe  use  of  the words ”  mesne profits” came\tto  be\tmade
\nprobably because while narrating the facts, those words were
\ninadvertently  used in the judgment.  This court  held\tthat
\nthe  use  of the words “mesne profits” in  the\tcontext\t was
\nobviously  the\tresult of inadvertence in view of  the\tfact
\nthat the decree of the Trial Court had specifically used the
\nwords ”\t net profits” and therefore the decretal order drawn
\nup  in\tthe High Court through mistake\tcould  be  corrected
\nunder  sections 151 and 152 of the Code even after the\tHigh
\nCourt  had granted certificate and appeals were admitted  in
\nthis court before the date of the
\n(1)  30 Ch. 239.\t\t\t\t (2)  A.I.R.\n<\/p>\n
1962 S.C. 633.\n<\/p>\n
\t\t\t     25<\/span><\/p>\n
correction.   It is true that under O. 20 r. 3 of  the\tCode
\nonce a judgment is signed by the Judge it cannot be  altered
\nor  added  to  but  the\t rule  expressly  provides  that   a
\ncorrection can be made under section 152.  The Rule does not
\nalso  affect the court’s inherent power under  section\t151.
\nUnder  section\t152, clerical or  arithmetical\tmistakes  in
\njudgments, decrees or orders or errors arising therein\tfrom
\nany accidental slip or omission may at any time be corrected
\nby  the court either on its own motion or on an\t application
\nby  any\t of the parties.  It is thus  manifest\tthat  errors
\narising\t  from\t an  accidental\t slip\tcan   be   corrected
\nsubsequently not only in a decree drawn up by a\t ministerial
\nofficer\t of the court but even in a judgment pronounced\t and
\nsigned by the court.\n<\/p>\n
As already pointed out, the mortgage in question was one  by
\nconditional sale empowering the mortgagee to take possession
\nof  the mortgage security if the monies due thereunder\twere
\nnot  paid by the due date.  The suit filed by the  mortgagee
\nwas  also  for\ta  foreclosure decree.\t The  tenor  of\t the
\njudgment  of the Trial Court shows that the court  meant  to
\npass  such  a foreclosure decree especially  as\t the  plaint
\ncontained no prayer for a decree for sale or for a  personal
\ndecree against the mortgagors or the said Hazra if the\tsale
\nproceeds were found insufficient.  The written statements of
\nthe  defendants\t did not raise any  contention\tagainst\t the
\nmortgagees’  right for a foreclosure decree,  their  defence
\nbeing  only  that  they were entitled to  pay  the  mortgage
\namount by instalments.\tThere can therefore be little  doubt
\nthat the court had no occasion to pass a preliminary  decree
\nfor  sale  and\tthat it was through an\taccidental  slip  or
\ninadvertence  that in the penultimate part of  its  judgment
\nthe  court used the phraseology proper in a mortgage  decree
\nfor sale.  Once this error had crept in the judgment it\t was
\nrepeated  in the preliminary decree and this error  was\t not
\neven  noticed  by the High Court when it  dismissed  Hazra’s
\nappeal\tand confirmed that decree.  The error was  later  on
\nnoticed\t by the appellants as is seen from the order  passed
\nby  the Trial Court dismissing the respondent’s\t application
\nunder section 151 for setting aside the final decree.\tThat
\norder  states that the Subordinate Judge who tried the\tsuit
\nthrough\t oversight  passed  a preliminary  decree  for\tsale
\noverlooking the fact that it was a suit for foreclosure\t and
\npossession,  that it was also apparent that this mistake  of
\nthe  Trial  Court  went unnoticed in the  High\tCourt  which
\nconfirmed the decree of the Trial Court and
\n\t      “therefore,  this\t court, when it\t passed\t the
\n\t      final  decree being apprised of  the  apparent
\n\t      mistake in the form of the preliminary decree,
\n\t      corrected the initial mistake and did  justice
\n\t      by passing a final decree for foreclosure\t and
\n\t      for  possession which was -the only  scope  of
\n\t      this suit.”\n<\/p>\n
This being the position the Trial Court had the power  under
\nsection\t 151 and section 152 to correct its own error  which
\nhad crept in the
\nSup. CI\/66-3
\n26<\/span>
\njudgment and the preliminary decree and pass a proper  final
\ndecree for foreclosure as intended by it.\n<\/p>\n
Mr., Chatterjee, however,, raised two contentions; (1)\tthat
\na  judgment  or decree cannot be varied\t when  it  correctly
\nrepresents  what the court decided though it may be  wrongly
\nnor can the operative or substantive part of the judgment be
\nvaried\tand  a\tdifferent one substituted  and\t(2)  that  a
\njudgment  or  decree cannot be varied where there  has\tbeen
\nintervention  of  rights  of  third  parties  based  on\t the
\nexistence  of  the  decree  and\t ignorance  of\tthe  mistake
\ntherein.   In such a case the exercise of power\t to  correct
\nthe mistake would be inequitable or inexpedient.
\nNo one can quarrel with these propositions.  But considering
\nthe  nature  of the mortgage, the cause of  action  and\t the
\nprayers\t in the suit, the absence of any contest as  regards
\nthat  cause of action and the prayers, and the tenor of\t the
\njudgment until it came to its penultimate part, there can be
\nno doubt that the intention of the Trial Court was to pass a
\npreliminary  decree for foreclosure as prayed for  and\tthat
\nwas what the court had decided.\t It was therefore through an
\naccidental slip that in that final part of the judgment\t the
\nSubordinate Judge used the phraseology used in a preliminary
\ndecree for sale.  Therefore, there is no question of a wrong
\njudgment having been passed by the Judge or the\t preliminary
\ndecree correctly representing that which was wrongly decided
\nby the Judge.  If that had been so, neither the judgment nor
\nthe  decree could be corrected and the obvious remedy  would
\nbe  by\tway  of\t an appeal. In\tBarhamdeo  Singh  v.  Harnam
\nSingh<\/a>(1)  though  only one of the  defendants  appeared\t and
\ncontested  the\tsuit the order made was that  “the  suit  be
\ndecreed\t with costs.” This was allowed to be altered on\t the
\nground\tthat it was contrary to the intention of the  court,
\nthat such an intention had to be gathered from the  judgment
\nas  a  whole and that the decree  following  the  concluding
\nportion\t of  the  judgment awarding costs  against  all\t the
\ndefendants was not in accord with the true intention of\t the
\ncourt.\n<\/p>\n
The  second contention is based on the observations of\tLord
\nHerschell in Hatton v. Harris(2) where he stated–\n<\/p>\n
\t      “that there may possibly be cases in which  an
\n\t      application  to  correct\tan  error  of\tthis
\n\t      description would be too late.  The rights  of
\n\t      third parties may have intervened, based\tupon
\n\t      the  existence of the decree and ignorance  of
\n\t      any  circumstances  which would tend  to\tshew
\n\t      that it was erroneous, so as to disentitle the
\n\t      parties to the suit or those interested in  it
\n\t      to  come at so late a period and ask  for\t the
\n\t      correction
\n\t      to be made.”\n<\/p><\/blockquote>\n
(1)  18 C. W. N. 772.\n<\/p>\n
(2) [1892] A.C. 547 at 558.\n<\/p>\n
27<\/span><\/p>\n
It is true that the respondent purchased part of the  equity
\nof  redemption\tfrom his judgment-debtor, Hazra,  after\t the
\npreliminary  decree Was passed.\t It is also true  that\tthat
\ndecree was not in the form of a foreclosure decree but of  a
\nmortgage decree for sale.  But according to Lord Herschell’s
\nobservations, the intervening interest of third parties must
\nbe based on the existence of the decree and ignorance of any
\ncircumstances\twhich  would  tend  to\tshow  that  it\t was
\nerroneous.   No\t such thing has happened and indeed  it\t was
\nnever  the  case  of the respondent that  he  purchased\t the
\ninterest  of  the  said Hazra because he was  aware  that  a
\npreliminary  decree for sale has been passed and that  under
\nthat  decree  he would be entitled to redeem  the  mortgaged
\nproperty  or  that he was ignorant of the  mistake  in\tthat
\ndecree.\t That being the position it is difficult to see\t how
\nthe  case  of Hatton v. Harris() can apply  to\tthe  present
\ncase.\tIn  this  view, the Trial Court\t had  the  power  to
\ncorrect the accidental slip which had crept in its  judgment
\nand  correct  that  error by passing  the  final  decree  in
\naccordance  with its true intention.  The final\t decree\t was
\npassed after notice to the mortgagors and the said Hazra and
\nafter hearing them.  The respondent was not made a party  to
\nthat application as the appellants were never made aware  of
\nhis  purchase.\t The  respondent also had not  cared  to  be
\nbrought\t on record in substitution of or in addition to\t the
\nsaid  Hazra from whom he derived his interest in the  equity
\nof redemption.\tIn our view, both the contentions raised  by
\nthe respondent in this behalf must be rejected.
\nWhat then is the position of the respondent once it is\theld
\nthat the final decree for foreclosure was validly passed  by
\nthe  Trial  Court  ? Could he challenge that  decree  in  an
\nappeal against it in the High Court on the basis that he was
\nentitled  to  redeem the said mortgage?\t Section 91  of\t the
\nTransfer of Property Act provides that besides the mortgagor
\nany person other than the mortgagee who has any interest  in
\nor  charge  upon the property mortgaged or in  or  upon\t the
\nright to redeem the same may redeem or institute a suit\t for
\nredemption   of\t such  mortgaged  property.   An   execution
\npurchaser  therefore of the whole or part of the  equity  of
\nredemption  has the right to redeem the mortgaged  property.
\nSuch a right is based on the principle that he steps in\t the
\nshoes of his predecessor-in-title and has therefore the same
\nrights\t which\this  predecessor-in-title  had\tbefore\t the
\npurchase.  Under section 59A of the Act also all persons who
\nderive\ttitle  from the mortgagor are included in  the\tterm
\n“mortgagor”  and  therefore entitled to redeem.\t  But  under
\nsection\t 52 which incorporates the doctrine of lis  pendens,
\nduring\tthe  pendency  of a suit in which any  right  to  an
\nimmovable property is directly and specifically in  question
\nsuch  a\t property cannot be transferred or  otherwise  dealt
\nwith by any party to the suit or proceeding so as to  affect
\nthe rights of any
\n(1)  [1892] A.C. 547 at 558.\n<\/p>\n
28<\/span><\/p>\n
other party -thereto under any decree or order which may  be
\nmade therein except under the authority of the court and  on
\nsuch terms as it may impose.  Under the Explanation to\tthat
\nsection the pendency of such a suit commences from the\tdate
\nof its institution and continues -until it is disposed of by
\na  final  decree  or  order  and  complete  satisfaction  or
\ndischarge of such a decree or order has been obtained.\t The
\npurchaser pendente lite under this doctrine is bound by\t the
\nresult\tof  the litigation on the principle that  since\t the
\nresult must bind the party to it so must it bind the  person
\nderiving his right, title and interest from or through\thim.
\nThis principle is well illustrated in Radhamadhub Holdar  v.
\nMonohar(1)  where the facts were almost similar to those  in
\nthe  instant  case.  it is true\t that  section\t52  strictly
\nspeaking  does not apply to involuntary alienations such  as
\ncourt sales but it is well-established that the principle of
\nlis  pendens  applies to such alienations. (See\t Nilkant  v.
\nSuresh\tChandra(2)  and\t Motilal  v.  Karrabuldin  (3).\t  It
\nfollows\t that the respondent having purchased from the\tsaid
\nHazra  while the appeal by the said Hazra against  the\tsaid
\npreliminary  decree  was  pending in, the  High\t Court,\t the
\ndoctrine  of lis pendens must apply to his purchase  and  as
\naforesaid  he was bound by the result of that suit.  In\t the
\nview  we  have taken that the final foreclosure\t decree\t was
\ncompetently  passed by the Trial Court, his right to  equity
\nof  redemption\twas extinguished by that decree and  he\t had
\ntherefore  no longer any right to redeem the said  mortgage.
\nHis  appeal against the said final decree  was\tmisconceived
\nand  the  High\tCourt was in error in  allowing\t it  and  in
\npassing\t the said order of remand directing the Trial  Court
\nto  reopen  the\t question of redemption\t and  to  allow\t the
\nrespondent  to participate in proceedings to amend the\tsaid
\npreliminary decree.\n<\/p>\n
In  the result, we allow the appeal, set aside the  judgment
\nand decree passed by the High Court and restore the judgment
\nand  decree passed by the Trial Court.\tThe respondent\twill
\npay the appellants’ costs all throughout.\n<\/p>\n
G.\t\t\t\t\t\t\t  C.\nAppeal allowed.\n(1)15 I.A. 97.\n(3) 24 I.A. 170.\n(2) 12 I.A. 171.\n29<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Samarendra Nath Sinha & Anr vs Krishna Kumar Nag on 1 November, 1966 Equivalent citations: 1967 AIR 1440, 1967 SCR (2) 18 Author: Shelat Bench: Shelat, J.M. 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-72148","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSamarendra Nath Sinha & Anr vs Krishna Kumar Nag on 1 November, 1966 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/samarendra-nath-sinha-anr-vs-krishna-kumar-nag-on-1-november-1966\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Samarendra Nath Sinha & Anr vs Krishna Kumar Nag on 1 November, 1966 - 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