CHACKO THOMA Vs. ITTY IYPE THOMA

JUDGEMENT

(1.) THIS is an application for review of the judgment, a Division Bench of the Travancore High Court passed on 15.4.1123 in appeal suits Nos. 540 and 558 of 1120. Those appeals were directed against an order of the learned Second Judge of Kottayam setting aside an execution sale under O. XXI R. 87 of the Civil Procedure Code. In disposing of the appeals the High Court directed that in case the plaintiffs, whose failure to pay the defendants their value of improvements occasioned the sale, pay into the lower court certain specified amounts within two months of the decision of the appeals, the order setting aside the sale will stand confined and that otherwise the sale will be upheld. Pursuant to this decision the plaintiffs' assignee the present petitioner applied to the lower court to fix the amount to be deposited and that court passed an order fixing the same at Rs. 2301-chs.15-cash 12. THIS was after giving credit for an amount of Rs. 10694-chs.18-cash 4 the plaintiffs or the petitioner had paid into the execution court on 15.3.1122 while the appeals were pending before the High Court. The petitioner duly deposited the further amount fixed by the court and sought to obtain delivery of the properties which were then in the possession of receivers appointed by the court. That prayer was granted and defendants 13 and 14, to whom the amounts in deposit were due, first applied for payment out to them of those amounts. However, on a subsequent date i.e. on 14.4.1112, they put in a petition to the lower court stating that the plaintiffs had not deposited all the amounts due as per the High Court's decision and that the properties should therefore be redelivered to them after confirmation of the sale. The petitioner soon filed an application to the High Court under S. 116 C.P.C. alleging that in setting out the amount to be deposited the court had by an inadvertent mistake stated the sum in British Indian Currency instead of in the Currency of the State. The petitioner's case was that instead of 10694 Sirkar Rupees the order mistakenly stated it as 10694 British Rupees. By the time that petition came to be filed one of the learned Judges who decided the appeals had retired and a Division Bench composed of the remaining Judge and another, dismissed that application on the ground that no question of passing a 'slip order' arose in the case and that the Bench which disposed of the appeals would seem "to have made a deliberate direction to pay into Court a sum of 10694 British Rupees as a condition precedent to the cancellation of the sale". THIS order was passed on 25.3.1125 and the petition which gave raise to it was C.M.P. No. 1327 dated 23.4.1124. Soon afterwards on 7.4.1125, the petitioner filed the present review petition. The sum and substance of the review petition is that this court should now hold that the words '10694 British Rupees' occurring in the judgment in A.S. Nos. 540 and 558 should be read as '10694 Sirkar Rupees' and that it was that the court really meant. If this is done the deposit made will cover all the due amounts and no penal consequences would hence follow. Defendants 13 and 14, who were the appellants in those cases and now counter-petitioners, strenuously oppose the review. On the face of it the review is long out of time, but along with the review petition the petitioner filed C.M.P. No. 207 of 1950 to condone the delay. It was contended that the facts set out in the affidavit supporting the application for the condonation would not warrant the delay being condoned. The other grounds on which the review was opposed are that the present Bench is incompetent to hear it and that in view of the order passed on 25.3.1124 on C.M.P. No. 1327 it is impossible to hold that there is any error apparent on the face of the judgment or even on the face of the record. We have given the arguments addressed before us from either side our best consideration and we are decidedly of opinion that even if we condone the delay we cannot in the face of the express pronouncement this court made in the order on C.M.P. 1327 find our way to hold that the error is such as to justify our interference in review even on the assumption that the limitations imposed by O. XLV R. 2 do not apply to the High Court. The order dismissing C.M.P. 1327 was written by one of the Judges who took part in disposing of the appeals and when that learned Judge chose to say that the court made a deliberate direction to pay 10695 British Rupees as a condition precedent to vacate the sale, it is not open to us to say that there is any error apparent on the face of the judgment as required by R. 2 of O. XLV or any error apparent on the face of the record as stated in R. 1. It is not for us to consider whether it was within the competence of the learned Judges to direct the deposit of any amount as a condition precedent to confirm the lower court's order or whether it was proper to fix for such deposit an amount different from that payable under the decree. Certain extracts which we shall presently quote from the judgment disposing of the appeals clearly show that the learned Judges were satisfied that it was a case where the sale had to be annulled even though they were not prepared to agree with some of the reasons the lower court gave for that conclusion. It is legitimate to ask whether the court on its own could have on that finding passed the conditional order it made, but we should treat it as an instance where the court with the tacit assent of the parties before it adopted a procedure different from the ordinary 'cursus' curae with a view to do substantial justice between the parties. Assuming we have jurisdiction to entertain the review, we cannot therefore on the merits find our way to afford relief to the petitioner by way of review and substitute the words "Sirkar Rupees" in place where the expression "British Rupees" occurs in the judgment to be reviewed. THIS does not however mean we are powerless to relieve the petitioner of the penal consequences arising from his failure to comply fully with the requirements of the judgment to deposit all the amounts mentioned therein. Though we cannot agree that the court meant to state 10694 Sirkar Rupees while it mentioned 10694 British Rupees, reading the judgment as a whole we cannot help feeling that this is a case where the counter-petitioners are trying to take undue advantage of a situation brought about by the judgment passed in the appeals. The court, both here and below, and the parties, proceeded as if the deposit made on 15.3.1122 was in terms of British Indian Currency and that the value awarded for improvements was also in terms of the same. The deficit now found due in the deposit subsequently made arose on account of that mistake. It is bootless to consider how the mistake arose, but it is impossible to exempt the counter-petitioners from all blame. The decision was given in open court in their presence, or in the presence of their counsel, immediately after the arguments were concluded. No litigant before a court can be permitted to benefit by a mistake made by the court nor can anybody be made to suffer for the court's mistake. No act of the court can or should hurt any person. Every Court has inherent jurisdiction vested in it to ensure that its order carries into effect the decision at which it arrives and we think it only just and equitable that in the exercise of that inherent jurisdiction we should allow the petitioner to enjoy the benefit of the High Court's decision by giving him such further time as is found necessary to make good the deficit amount without at the same time allowing the opposite side to suffer any undue detriment. The counter-petitioners have to be compensated for the loss they sustained on account of all these delays and that has to be and will be done. In taking the above decision we have not omitted to consider certain facts brought to our notice by the learned counsel for the counter-petitioners. It was said that the present petitioner is only an assignee who purchased the rights of the original plaintiffs as a speculative venture and that the case has behind it a long history of cantankerous litigation. These are in our opinion irrelevant considerations and if we may say so without disrespect, the judgment contained the germs for the subsequent confusion. The fact the petitioner has not expressly sought to invoke the inherent jurisdiction of the court is in our opinion no sufficient reason for us not to exercise it or to wait till the lower court passes its orders on the application the counter-petitioners filed on 14.4.1124. Real and substantial justice for whose administration alone courts exist demands our interference at this stage in the manner we propose to do. Ordinarily what a court does when it finds that an execution sale cannot be confirmed is to pass an order to that effect. Here however the court went out of its way in the exercise of what may be called its equitable jurisdiction with a view to end a long pending litigation. The following extracts from the judgment would show that on the merits the present petitioner was entitled to succeed and normally he should have got an unconditional order in his favour. No doubt when the court passed a conditional order parties are bound by it, but if in carrying out the conditions imposed a difficulty or a bona fide mistake arises on account of the terms of the decision itself it is the court's duty to do what is just and necessary to give effect to its true intention. All that the court wanted was to have a long pending dispute settled within a reasonable time is clear from the terms of the decision itself. No particular sanctity would seem to have been attached to the period of two months. The portions of the judgment relevant for our present purpose are these: Para 2 ........................... "As we however, are of the view that the properties have been sold for a grossly inadequate price, it is unnecessary for us to deal with other matters dealt with by the lower court for setting aside the sale." In the concluding portion of para 3 it is seen stated: