SAILENDRA NATH ROY CHOWDHURY Vs. MD ALIM

JUDGEMENT

(1.) This Rule arises on an application under Section 115 of the Code and is directed against Order No. 52 dated 15th Feb., 1979, passed by Shri R. Chatterji, Judge, 4th Bench, City Civil Court at Calcutta in Title Suit No. 842 of 1976. By the said order, the learned Judge allowed an application under Section 151 of the Code filed by the defendant and set aside the compromise decree and further ordered the suit or proceedings to proceed in accordance with law. The facts of the case may briefly be stated as follows :--

(2.) The premises No. 13/1B, Marsden Street, now known as 13/1, Pemantle Street, Calcutta, belonged to the Trust Estate of Dr. Ajita Nath Roy Chowdhury, since deceased, and Dr. Amarendra Nath Roy Choudhury, since deceased and the petitioner was the joint trustee to the said Trust Estate. The opposite party No. 1 was inducted as a licensee in respect of six rooms on the ground floor. As the opposite party No. 1 failed to vacate the premises on revocation of the licence, the petitioner with other trustees instituted Title Suit No. 842 of 1976 in the City Civil Court, Calcutta for recovery of possession. An ex parte decree was passed as the opposite party No. 1 failed to appear in spite of due service of summons. Tbe decree was subsequently put into execution and Title Execution Case No. 55 of 1976 was registered. As the opposite party resisted, the petitioner filed an application under Order 21, Rule 97 of the Code and prayed for police help and it was registered as Miscel-laneous Case No. 876 of 1976. Thereafter, opposite party made an application under Order 9, Rule 13 of the Code which gave rise to Misc. Case No. 1654 of 1976. During the pendency of the said Misc. case, one of the trustee-decree-holder Dr. Ajita Nath Roy Chowdhury died and in his place, Dhireadra Nath Roy Chowdhuty was appointed as joint trustee along with the petitioner. The opposite party filed an application under Order 22, Rule 4A of the Code on May 21, 1977 praying for substitution of the said Dhiren-dra Nath Roy Chowdhury, but no order was passed until Feb. 18, 1978. The opposite party subsequently filed an application under Order 39, Rr. 1 and 2 of the Code in Misc. Case No. 1054 of 1976. Without serving any copy of the said application and without giving any opportunity to the petitioner to oppose the said application, the opposite party moved the application on April 29, 1976 and got an order of temporary injunction against the petitioner. Being aggrieved, the petitioner came in appeal to this Court being F. M. A. No. 515 of 1977. The appeal was admitted and this Court stayed the operation of the order of injunction. At the final hearing, the injunction order was modified by this Court. On 18-2-78 in course of hearing of the Misc. Case arising out of an application under Order 39, Rule 2A of the Code at the instance of the opposite party and on the suggestion of the learned Judge the respective parties and their lawyers agreed to settle all the disputes and to file compromise petition. Three joint petitions of compromise in Misc. Case No. 1086A of 1977, Misc. Case No. 1054 of 1976 and Title Suit No. 842 of 1963 were filed on Feb. 18, 1978 and the Court by Order No. 45 allowed the said joint petitions of compromise on the finding that they were valid and legal and all the cases including the suit were disposed of. By the same order, the application of the opposite party dated May 21, 1977 for substitution of the name of Dhirendra Nath Roy Chowdhury in place of Dr. Amarendra Nath Roy Chowdhury was allowed. It is stated that the joint compromise petitions were signed by the opposite party No. 1 alone. The question of signing the compromise petitions by the added trustee Dfairendra Nath Roy Chowdhury could not and did not arise at all as the order of substitution was made after filing of the said compromise petitions. The opposite parties without preferring any appeal as provided in Order 43, Rule 1A of the Code, long after the period of limitation, filed an application under Section 151 of the Code on May 23, 1977 for setting aside the order dated 18th Feb., 1978 and for restoration of the suit after recalling the compromise decree. The opposite party contended that though Dhirendra Nath was substituted, he did not file any Vakalatnama nor signed the petitions of compromise; that the petitions of compromise contained extraneous matters and that the petitions of compromise and/or agreement suffered from uncertainty and/or vagueness apparent on the face of the record and as such void under the Contract Act. The petitioner opposed the said application. The learned Judge by his order No. 52 dated Feb. 15, 1979 allowed the application holding that in view of the fact that Dhirendra Nath did not sign the compromise petition and in view of the fact that the compromise petition is an agreement, the meaning of which is not certain or capable of being made certain and therefore the same is void; the willingness of Dhirendra Nath to act on the basis of the compromise petition was not ascertained, nor was any enquiry held as to whether he had any interest for the trust property; the compromise decree in question is void under the provisions of Section 29 of the Contract Act. It was also stated that the order dated Feb. 18, 1978 was passed by the learned Judge by mistake and that can be rectified under Section 151 of the Code. Being aggrieved by the aforesaid order, the petitioner has come up to this Court.

(3.) Mr. Bankim Ch. Dutta, learned Advocate appearing on behalf of the petitioner, in the first place, submits that application under Section 151 was not maintainable as there is a specific provision for appeal. If really the opposite parties were aggrieved by the compromise decree on the ground that it was defective as the parties did not sign or the terms of the compromise were vague and uncertain, then the proper remedy for the opposite parties was to prefer an appeal. But, instead of doing so, they filed an application under Section 151 of the Code for the purpose of recalling the order passed by the same Court. Mr. Dutta refers to the provisions of Order 43. R- 1A of Civil P. C. In this connection, Mr. Dutta first refers to a decision reported in (Nain-singh v. Koonwarjee). In this case, it has been held that "Court cannot make use of Section 151 where a party had his remedy provided elsewhere in the Code and he neglected to avail himself of the same-- Power cannot be exercised as aa appellate power. The order in question was an order of remand made under Order 41, Rule 23 of the Code. That order was appealable under Order 43 of the Code. As the same was not appealed against, its correctness was no more open to examination in view of Section 105 (2) of the Code which lays down that where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom he shall thereafter be precluded from disputing its correctness". It was held by their Lordships "The High Court has misconceived the scope of its inherent powers. Under the inherent power of Courts recognised by Section 151. C. P. C., a Court has no power to do that which is prohibited by the Code. Inherent jurisdiction of the Court must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked". The next case relied on by Mr. Dutta has been reported in (Mrs. Namita Dhar v. Dr. Amalendu Sen). In this case, myself sitting with B. C. Ray, J., held that "An order under Order 11, Rule 21 of the Code is an appealable order. The petitioner instead of preferring an appeal filed an application under Section 151 which was completely misconceived". The next case cited by Mr. Dutta has been reported in (1964) 68 Cal WN 1064 (Sibani Rani Dutta v. Balai Ch. Dutta). In this case, it has been held that "No Court can have an inherent power to do what is expressly prohibited by the Code. But in matters which are neither prohibited nor expressly provided for, the Court has an inherent power to adopt such procedure as a necessary for securing the ends of justice or to prevent abuse of the process of the Court, having regard to the particular facts and circumstances of a case". It has further been held that "Where the Code itself makes an express provision for a particular remedy, the party, who does not avail of such remedy, cannot, as a rule, be allowed to resort to Section 151, for, to do so would be to defeat the object and utility of the Code itself". It has also been held that "There may be extraordinary cases, where the application of Section 151 of the Code may be justified even though there may be an alternative remedy. One of such exceptional cases may be where the Court itself had committed such mistake or such omission as may be termed an abuse of the process of the Court. In such cases, the Court is bound to rectify its mistake according to the maxim --'actus curiae neminem gravabit'." Mr. Dutta, with much emphasis submits that in this case, considering the facts and circumstances, it cannot be said that any mistake was committed by the Court in decreeing the suit on compromise. That being so, the Court had no power under Section 151 of the Code to correct the so-called mistake. If the defendant was aggrieved, the defendant could very well prefer an appeal against the decree. Mr. Ranjit Kumar Banerjee also relied on this decision and submits that it was really a mistake on the part of the Court as all the parties did not sign the compromise petition. One of the trustees was dead. There was an order for substitution of the deceased trustee. But when the compromise decree was passed till then the order was not given effect to. The plaint was not amended and naturally the substituted heir did not come before the Court Again, Mr. Banerjee submits that the Court itself found that the three affidavits where the terms were incorporated, were not with the records and in such circumstances, the terms were uncertain and indefinite and in these circumstances also the Court found that there was mistake in passing the compromise decree. Mr. Dutta, however, submits that the learned Judge has acted illegally and with material irregularity in holding that the compromise petition was not signed by all the parties overlooking the fact that at the time of signing the compromise petition there were only two parties on record, the petitioner and the opposite party and the substitution order was passed after filing of the said compromise petitions in Court and the trust estate was duly represented by the trustee on record. Mr. Dutta also submits that the learned Court below misread and misunderstood the petitions of compromise and it has acted illegally in holding that the terms of the compromise petitions are uncertain and as such they are void. The learned Judge ought to have found that neither the trust estate nor the substituted or added trustee took exception to the compromise petition or the compromise decree. Mr. Dutta next refers to a decision reported in AIR 1933 Cal 94 (Haridas Sadhu Khan v. Tswar Ratneswar). In this case, it has been held that "An appeal from an order under Order 23, Rule 3 is not incompetent if the decree is made before the appeal is presented. It is not necessary for a party aggrieved by an order under Order 23, Rule 3 to appeal both from the order and the decree in order to maintain his appeal against order under Order 23, Rule 3". From what has been laid down in this decision, Mr. Dutta wants Us say that the proper remedy to set aside a compromise decree is to prefer an appeal. Mr. Dutta next relies on a decision reported in (Mathura Singh v. Deo-dhari Singh). Their Lordships held "In the present case also, as the decree was not a consent decree based on consent of all the parties concerned, the decree passed in this case could not be regarded as a consent decree. The principles of this case are fully applicable to the case of a consent decree under Section 96 of the Civil P. C. The principle of the case was applied by the Allahabad High Court in Sagwa v. Datwa, in case of a decree passed upon a compromise against a minor for which leave of the Court was not obtained under the provisions of Order 32, Rule 7 of the Civil P. C. as it could not be said to be a _ valid consent decree and, as such, the minor can challenge it by way of appeal and Section 96 does not bar it. In view of the decision of the Judicial Committee, referred to above, the decision to the contrary in Smt. Golnur Brbi v. Sheikh Abdus Samad, AIR 1931 Cal 211, could not be regarded as a good law. In Nityamoni Dasi v. Gokul Chandra Sen, (1911) 9 Ind Cas 210 (Cal), the Calcutta High Court held that a person, not a party to the compromise, can successfully challenge the decree as invalid in appeal. Therefore, this contention of learned counsel for the respondents is without any substance and must be overruled". Mr. Banerjee in order to refute the submissions of Mr. Dutta first relies on a decision, reported in (1913) 40 Ind App 151 (Raja Debi Bakhsh Singh v. Habib Shah). In this decision at p. 155, it has been observed by the Judicial Committee that "Quite apart from Section 151, any Court might have rightly considered itself to possess an inherent power to rectify the mistake which had been inadvertently made". Mr. Banerjee, next refers to a decision, reported in (1950) 54 Cal WN 568 (Piyaratana Unnanse v. Waharekk Sen-uttara Unnanse (deceased)). This was a case from Ceylon. It was held that "Section 189 of the Civil P. C. of Ceylon provides an ex ception to the general rule and, an exception within a narrow compass. It does not take away any right of appeal but provides for a means of rectifying an obvious error. Section 189 of the Civil P. C. of Ceylon is as follows :-- "The Court may at any time, either on its own motion or on that of any of the parties, correct any clerical or arithmetical mistake in any judgment or order or any error arising therein from any accidental slip or omission, or may make any amendment which is necessary to bring a decree into conformity with the judgment". The next case referred to by Mr. Banerjee has been reported in (Keshardeo Chamria v. Radha Kissen Cham-ria). In this case, the decree-holder applied under Section 151 of the Civil P. C. for restoration of the execution case and the Court thereupon restored the Execution Case under its inherent powers in order to rectify the said mistake it had committed in dismissing the Execution Case by the same order without giving opportunity to the decree-holder to take the necessary steps. On revision the High Court set aside the order of restoration and remanded the case to the executing Court for reconsideration and disposal. The High Court was of the opinion that the executing Court was in error in restoring the case without taking into consideration the point whether the decree-holder's Pleader could really take any step in aid of the execution if he had been appraised of the order of the Court dismissing the adjournment application. It was held by their Lordships that "In the circumstances of the case the order in dismissing the execution on part satisfaction was bad and the executing Court was justified in correcting the same under its inherent powers". Next, Mr. Banerjee relies on a Full Bench decision reported in (Bimla Devi v. Aghore Ch. Mallick). In this case, it was held that "An appeal lies under Order 43, Rule 1 (j) of the Civil P. C. from an order dismissing an application under Order 29, Rule 90 for default of appearance. Such an appeal will however, be useless and ineffective inasmuch as the appellate Court would have no materials on record when no evidence has been adduced to come to a decision whether the appellant was prevented by sufficient cause from appearing in Court ..... In such a case, although an appeal has been provided under the Code of Civil Procedure, the Court will have jurisdiction to entertain an application under Section 151 of the Code for setting aside the order of dismissal for default". Mr. Banerjee next refers to a decision of the Judicial Committee, reported in (1945) 49 Cal WN 195 : (AIR 1945 PC 23) (Lala Man Mohan Das v. Janki Prasad). At page 201, it has been held that "one of the managers and trustees of an idol, even if he be the sole de facto manager and trustee, entitled to act as such in an emergency, cannot by executing a deed as respect a property of the idol bind the idol or convey a valid title, unless his act is done with the sanction and approval of Ms co-trustees. Such sanction must be strictly proved." The next case referred to by Mr. Banerjee has been reported in (FB) (Abdul Rashid v. Sri Sitaramji Maharaj Brajman). In this case, it was held "Where the order dismissing the execution application was passed inadvertently in the routine manner without hearing the decree-holder despite the earlier order expressly saying that the decree-holder's application be heard in the presence of the Counsel, it was an error of the Court and it is axiomatic that no prejudice should be caused to a party on account of an error committed by the Court. Hence, the remedy of appeal notwithstanding, the Court could act ex debito justjtiae in order to correct its own error." Mr. Banerjee next relies on a decision reported in (Atmaram Ranchhod-bhai v. Gulamhusein Gulam Mohiyaddin). in this Full Bench decision, it was held that "Thus unless the instrument of trust otherwise provides, all co-trustees must join in filing a suit to recover possession of the property from the tenant". Their Lordships in coming to such decision relied on AIR 1933 Cal 109 (Gopal Sridhar v. Sashi Bhu-shan). Applying this principle of law Mr. Banerjee submits that in the case of entering into compromise all co-trustees must join unless there is contrary provision in the trust deed. In the present case, the trust deed has aot been produced. Mr. Banerjee next relies on a decision reported in (1901) 5 Cal WN 877 (Biraj Mohim Dasi v. Sritmti Chinta Moni Dasi). In this case it has been held "When a decree is passed by consent of parties, the question as to whether or not the compromise decree is valid cannot be gone into on an appeal against that decree." In this case, the two grounds by which the compromise decree was sought to be set aside were-- (1) the pleader who entered into the compromise on behalf of the defendants-appellants, had no authority to enter into it; and (2) that the Court, in sanctioning the compromise, so far as the minor defendants were concerned, did not take into consideration the question whether the compromise wag for benefit of minors. It was held in the facts and circumstances of the case that "an appeal is not the proper mode of having the question determined, for, in an appeal, the Court must deal with the case upon the materials which are on the record". Lastly, Mr. Banerjee relies on a decision reported in (Jarat Kumari Dassi v. Shaligratn Subh-karan Khemani). In this case, it was held "In view of Sections 44 and 76 of the Trust Act, the surviving trustees, in case of death of any of the original trustees, will be quite competent to represent the Trust Estate and the trust property would vest in them except, possibly when the number falls below what may be taken to be the minimum under the Trust deed ..... Mr. Barun Kumar Roy Chowdhury, learned Advocate appearing on behalf of the opposite party No. 2 supports Mr. Dutta and submits that the plaintiff and the defendants agreed to the terms and those terms were incorporated in the compromise petition which form part of the compromise decree. The learned Court considered those terms to be legal and valid and passed a compromise decree. After that, it is not open for the same Court to correct the decree and to set aside the same holding that mistakes was committed by the Court. Mr. Roychowdhury with such emphasis submits that considering the facts and circumstances, it cannot be said that any mistake was committed by the Court and as such, the Court had no jurisdiction to set aside the decree which was passed by it in the name of correcting a mistake. After hearing the learned Advocates for the parties at length and considering the legal principles laid down in the various decisions referred to above, and considering the facts and circumstances of the case, I am of the opinion that the application under Section 151 of the Code for setting aside the decree was not maintainable. It cannot be said that any mistake was committed by the Court and the said mistake was corrected by setting aside the decree. If really the petitioner felt aggrieved by the compromise decree, the proper remedy for that was to prefer an appeal.