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HIGH COURT OF ALLAHBAD
AGARWALA, J.
Beche Lal
Versus
Hem Singh
Revn. Appln. No.41 of 1947
Decided On : 06-11-1952
AMENDMENT OF DECREE - MISTAKE IN DECREE - POWER OF COURT TO AMEND - LIMITATION - ESTOPPEL - RES JUDICATA - LACHES - PRINCIPLE OF "WHERE ONE OF TWO INNOCENT PERSONS MUST SUFFER BY THE ACTS OF A THIRD PERSON, HE, WHO HAD ENABLED SUCH THIRD PERSON TO OCCASION THE LOSS, MUST SUSTAIN IT" - APPLICABILITY.
Fact of the Case:
A decree for sale of mortgagee rights was prepared as a decree for sale of proprietary rights due to a mistake. The mistake was discovered after the property was sold in execution of the decree and purchased by the decree-holder. The heirs of the judgment-debtor applied for amendment of the decree under Ss.151, 152 and 153, Civil P.C.
Finding of the Court:
The court held that the mistake in the decree was an accidental slip or error which could be corrected under S.152, Civil P.C. The court further held that the decree-holder was not estopped from making the application for amendment as he had constructive notice of the true facts. The court also held that the application was not barred by the principle of res judicata or laches.
Issues: 1. Whether the court had the power to amend the decree after it had been executed and satisfied? 2. Whether the decree-holder was estopped from making the application for amendment? 3. Whether the application was barred by the principle of res judicata or laches?
Ratio Decidendi: 1. The court has inherent power to correct accidental slips or errors in its judgments and decrees, even after they have been executed and satisfied. 2. The principle of estoppel does not apply when the mistake is of the court. 3. The application for amendment was not barred by the principle of res judicata or laches as it was made as soon as the mistake was discovered.
Final Decision: The court dismissed the revision application and upheld the order of the lower court amending the decree.
2. One Bhudher Singh executed a usufructuary mortgage on 18-8-1893 in favour of one Balwant Singh mortgaging 7 biswas, 2 kachwansis and 10 nanwansis in village Bijgawan for a consideration of Rs.400/-. A deed of further charge was executed about a year later on 15-8-1894, securing a sum of Rs.200/-. Bhudher Singh died leaving Khanzade Singh as his legal representative. Balwant Singh mortgagee sub-mortgaged his mortgagee rights by a deed, dated 31-5-1915, in favour of one Kunj Behari Lal for a consideration of Rs.200/-. Khanzade Singh, the representative of the mortgagor, purchased the mortgagee rights of Balwant Singh at an auction sale in execution of a decree and stepped into Balwant Singhs shoes. This would be, however, subject to the right of the sub-mortgagee, Kunj Behari Lal. In 1927, Kunj Behari Lal, the sub-mortgagee, sued upon his sub-mortgagee, impleading Balwant Singh and Khanzade Singh as defendants and claiming a sum of Rs.1,582/10/-. He prayed that this sum may be recovered by sale of either the proprietary rights in 7 biswas, 2 kachwansis and 10 nanwansis or, if that was not possible, by sale of the mortgagee rights therein. The suit was decreed on 4-11-1927. The Court ordered a decree for sale of the mortgagee rights to be prepared under O.34 R. 4, Civil P.C. inspite of the express terms of the judgment that the decree for sale was to be in respect of the mortgagee rights, a decree was prepared mentioning the proprietary rights in the property mortgaged to be sold. Nobody, however, noticed this discrepancy between the judgment and the decree.
3. It appears that Kunj Behari Lal had an undisclosed partner with him in the transaction of the sub-mortgage and also in the transaction of the suit. Kunj Behari Lal and this undisclosed partner executed a deed of sale in respect of the half share in the sub-mortgage and the preliminary decree to one Kanhaiya Lal. In the sale deed it was expressly mentioned that the sub-mortgage was with respect to the mortgagee right in 7 biswas and odd share and that a suit on the basis of the sub-mortgage for the sale of the mortgagee rights had been instituted by Kanhaiyalal. Thereafter, Kanhaiyalal and Kunj Behari Lal jointly made an application for the preparation of a final decree. On 10-8-1929, a final decree was prepared and the description of the property to be sold was copied from the preliminary decree. No money having been paid under the decree, an execution application was made for sale of the property. Notices were served on Khanzade Singh. Under O.21, R.66, Civil P.C. an order for sale was passed. On 20-7-1933 Khanzade Singh applied for postponement of the sale for a week. The sale was postponed to 28-7-1933. The property was ultimately sold on that date by the Collector and was purchased by the decree-holders themselves in lieu of the decretal amount and they certified full satisfaction of the decree and possession was delivered to them on 10-8-1934.
4. Kunj Behari Lal and Khanzade Singh died and the heir of Kunj Beharilal sold their half share of the property, purchased by them at the aforesaid auction sale, to the heirs of Khanzade Singh by means of two documents dated 21-7-1942, and 30-9-1943. It was after the execution of these sale-deeds that the discrepancy between the judgment and the decree of 4-9-1927, was discovered. An application for amendment of the decree as also of all subsequent proceedings including the sale certificate was made by the heirs of Khanzade Singh on 5-8-1946. It may be noted that this application was within 12 years of the date on which possession was delivered over the property to Kanhaiyalal and Kunj Behari Lal on 10-8-1934. In the application for amendment, it was alleged that the decree-holders had knowledge of the mistake in the decree and the fact h
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