KRISHNA GOPAL Vs. OSPAL SINGH

JUDGEMENT

(1.) This is an appeal against an order, dated 26th November 1943, passed by the learned Special Judge, first grade, Mainpuri. By reason of this appeal, the proceedings before the Collector have been held up for over five years.

(2.) Sauji Ram and Mauji Ram died leaving certain property. The heirs of the deceased made an application under Section 4, Encumbered Estates Act. Under Section 49, Encumbered Estates Act the debts due from the deceased were liable to be paid only out of the property left by them. In the list of properties mentioned in the written statement filed by the applicants under Section 8, U. P. Encumbered Estates Act item No. 4 was included in the list though it was specifically mentioned that it was the self-acquired property of Ospal Singh, one of the applicants. At the time when the learned Special Judge sent the list of properties to the Collector from which the debts of the deceased Sauji Ram and Mauji Ram had to be paid, this note was overlooked and this Item No. 4 was also included in the list with the result that the debts due from the de-ceased Sauji Ram and Mauji Ram could be realised from this item of property also. When Ospal Singh discovered this mistake, he moved the Collector and ultimately went up to the Board of Revenue, but he was informed that he had to move the Special Judge for the correction of the list prepared by him. The learned Special Judge, acting under his inherent jurisdiction under Sections 151 and 152, Civil P. C., to correct a clerical error, corrected the list and directed that Item No. 4 in the list of properties should be removed from the list sent to the Collector. It is against that order that this appeal has been filed. Mr. B. S. Darbari, learned counsel for the appellent, has relied on Section 47, U. P. Encumbered Estates Act and on Rule 3 framed under Section 54 of the Act. Section 47 runs as follows : "Except as provided in Sections 45 and 46, no proceedings of the Collector or Special Judge under this Act shall be questioned in any Court." We are not prepared to accept the argument of Mr. Darbari that under the Encumbered Estates Act there is no right of review, and, however, gross the error may be and whether it is a clerical or arithmetical error or not, the Special Judge has no power to correct it. The Encumbered Estates Act was not intended to lay down a complete rule of procedure for the trial of cases before the Special Judge. The procedure prescribed under the Code of Civil Procedure is applicable where it is not inconsistent with any provision of the U. P. Encumbered Estate Act. There being no provision for review or for amendment of a clerical or arithmetical error or such other mistakes which the civil Court can correct under Sections 151 and 152 of the Code, we are of the opinion that the said provisions are applicable to the proceedings before the Special Judge. Section 47, U. P. Encumbered Estates Act was only intended to give a finality to the orders of the Special Judge and it only provides that orders passed by him or by the Collector shall not be questioned in any Court. That would obviously mean 'in any other Court,' and we do not see how this can debar the Special Judge from reviewing his own order where grounds exist under Order 47, Civil P. C. or under Sections 151 and 152 of the Code for the granting such of review. There is, therefore, no force in this contention.

(3.) Rule 3 made under Section 54, U. P. Encumbered Estates Act, runs as follows :