1. Defendant judgment-debtors petition is for setting aside an order passed by the 4th Additional Subordinate Judge, Sasaram, allowing an application for amendment of the plaint and the decree sought for by the plaintiff decree-holder.

2. The amendment sought for is for expunction of the name of plaintiff No. 2 from the plaint as well as from the decree and to substitute the name of the deceased-plaintiffs wife Jabdharo Kuer, both in the plaint as well as in the decree.

3. For the purpose of this petition facts in detail are not necessary. Suffice it to say that on 13-6-1981 during the pendency of the suit plaintiff No. 2 died. Within 30 days therefrom, i.e., 10-7-1981, a petition was filed in the suit itself to expunge the name of plaintiff No. 2 and to substitute the name of his wife Jabdharo Kuer. This substitution petition was supported by an affidavit. The order sheet No. 83 dt. 10-71981 of the trial Court noticed the filing of, this petition as well as the prayer made. The last sentence of the order reads "Prarthana Patra Sanchalit Ho". It appears thereafter the Court did not pass any formal order and the matter remaineddormant. The suit thereafter was disposed of followed by a decree. On 15-4-1983, defendants filed an application under O.9, R.13 of the Civil P.C. for setting aside of the decree and while the said proceeding was pending an application for amendment was filed by the plaintiff decree-holder on 17-8-1983 seeking the relief of expunging the name of the deceased plaintiff, both from the plaint and the decree and in his place for the entry of the name of his wife. This is assailed by the defendants. The Court below after consideration of the respective cases of the parties allowed the prayer of the plaintiff by observing :

"So it was not the mistake and omission of the party rather it was mistake and omission of the Court who did not dispose of this petition before taking up the suit ...."

4. The present unfortunate position is for the failure of the Court to do its part of the duty. A litigant deserves to be protected against the default committed or negligence shown by the Court or its officers in discharge of their duties. As observed by Cairns, LC, in Rodger V/s. Comptoir d Escompte de Paris (1871) 3 PC 465 at P 475, as early as 1871 "One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors". The maxim Actus Curiae Neminem Gravabit (An act of the Court shall prejudice no one) "is founded upon justice and good sense; and affords a safe and certain guide for the administration of the law." It may, therefore, be observed that any injustice done by procedure not intended by Court to employ must be remedied on principle that act of Court shall prejudice none.

5. In the instant case an application for substitution was duly made in accordance with law. The Court intended to pass an order on the said petition. It appears that inadvertently the formal order was not rendered on the said application. The result was continuance of the name of the deceased, both in the plaint as well as in the decree prepared.

This is sought to be rectified by the plaintiff by invoking inherent jurisdiction of the Court in this regard. Question is whether this can be allowed in exercise of the Courts inherent power under Ss.151, 152 and 153 of the Civil P.C. or the plaintiff is required to ask for setting aside of the decree and seek permission to amend the plaint and have the case re-tried.

6. Learned counsel for the defendants-petitioners contends that the Court has acted wholly without jurisdiction in passing the impugned order. The Court had no jurisdiction to amend the decree by striking out the name of plaintiff No. 2 and further ordering substitution of the name of the wife of plaintiff No. 2. According to the learned counsel, so long as the plaint is not amended, the amendment in the decree is impermissible. He further contends that after the comple