CALCUTTA PROPERTIES LTD Vs. S N CHAKRABORTTY

JUDGEMENT

(1.) Both the First Miscellaneous Appeal and the First Appeal noted above are being disposed of by this common judgement whereunder the former shall stand dismissed while the latter shall stand decreed.

(2.) A mortgage-suit being T.S.No. 46 of 1969 was instituted in the 3rd Court of the Subordinate Judge at Alipore by the appellant against the original mortgagor as the defendant No. 1 and the subsequent purchaser of the mortgage-security as the defendant No. 2, who is now the respondent before us. The learned Judge, by his order dt. 21-1-71, dismissed the suit as in his view the mortgagor defendant No. 1 having died before the institution of the suit, the suit was not maintainable and could not proceed against the respondent-defendant No. 2 who was, as already noted, subsequent purchaser of the mortgage-security. As we shall see when we would deal with F. A. No. 162 of 1973, the order of the learned Judge was patently erroneous. The learned Judge also realised it very soon that he was wrong, but in order to undo that wrong, he committed another wrong by reviewing and setting a side the order dt. 2-11-71 by his order dt. 27-1-71 and restoring the suit back to file and all these were done by the learned Judge suo motu and without any notice to or any application from any of the parties. Being aggrieved, the respondent defendant No. 2 filed an application under O.47, R.1 of the Civil P.C. for review of the order dt. 27-1-71 and the same has been allowed by the successor learned Judge by his order dt. 29-9-72 by setting aside the second order dt. 27-1-71 and restoring the first order dt. 21-1 -71. The plaintiff-appellant has moved us in appeal against the last order dt. 29-9-72 in this F. M. A. No. 773 of 1973 and we have not the slightest doubt that we must dismiss the appeal.

(3.) It is true that, as would be seen hereafter, the order dt. 21-1-71 dismissing the suit was clearly wrong. But we are afraid that such wrong could not be righted by another wrong. Notwithstanding Bassanio's appeal in the Merchant of Venice to "do a little wrong" in order "do to a great right", in the domain of Law as at present, as in the sphere of Morality, the end however good and laudable, does not, by itself, justify the means and the means must justify itself. Under O.20 R.3 of the Civil P.C. the learned Judge, after having pronounced and signed the order dt. 21-1-71, could not thereafter alter or add to the same save as provided by S.1 of the Code or on review. S.152 having merely provided for correction of clerical or arithmetical mistakes or errors arising from any accidental slip or omission could not sustain the order dt. 27-1-71 whereby the earlier order dt. 21-1-71 was set aside on the ground of erroneous application and appreciation of law and facts. And as the provisions of S.114 and O.47 R.1 of the Code would show, the power of review, if otherwise exercisable, could be exercised only on the application of a party and not by the Court on its own motion and it is admitted that there was no such application by any party in this case.