SHRI BHABENDRA NATH DAS Vs. SHRI ABBAS DEWANI

JUDGEMENT

(1.) THE revision Petitioner in this case is the Defendant -mortgagor. The validity of the order passed on 30.5.79 in Title Suit No, 65 of 1971 by learned Munsiff, Goalpara is challenged in this proceeding.

(2.) IT was a suit by the mortgagee for foreclosure of the mortgage executed by the Defendant -Petitioner. On 16.2.76 an order was parsed by the Court for ex -parte hearing of the matter on 9.3.76. Accordingly, on that date the Court passed "ex parte preliminary decree" of foreclosure after recording the evidence of the Plaintiff and after it found that there was no application filled for setting aside the order of ex parte hearing. However, the only direction in the order was to the affect that the Defendant shall within one month execute the sale deed apparently because it was a mortgage by conditional sale. It was further directed that in default the deed shall be executed through the Court Accordingly, the decree was drawn up in high Court Form No. J, 30(1) which bear the heading 'Preliminary Decree for Foreclosure', In the decree, in the 1st paragraph there, some blanks were left which were meant for stating the amount decreed. In the 2nd paragraph it was stated that "an ex parte preliminary degree" was passed in favour of the Plaintiff and that the Defendant shall execute and register the sale deed of the Mortgaged land within a month otherwise the sale deed will be registered through Court." In the 3rd paragraph it was stated that "in default of payment as aforesaid, the Plaintiff may apply to the Court for a final decree that the Defendant shall thenceforth stand absolutely debarred and foreclosed on and from all right to redeem the mortgaged property" On 25.9.78, the Defendant mortgagor filed a petition in the case. It was stated in the petition that the Plaintiff has not so far applied to the Court for drawing up the Final Decree. It was further stated that the mortgagor -Petitioner was an indigent person and he had no other land and further that to satisfy the debt under the mortgage he had arranged funds which he shall deposit with costs on order being passed to that effect by the Court. The Petitioner shall suffer irreparable injury if he is not allowed to refund the amount.

(3.) ON 30.5.79 the impugned order was passed by the Court. It was observed in the order that the point to be determined was whether the order dated 26.9.73 could be rightly passed by the Court. On behalf of the Defendant it was submitted that the order was passed under Section 151 Code of Civil Procedure invoking the inherent power for the ends of justice and to prevent abuse of the process of the Court. What was done by the Court was merely correction of its own wrong. However, it appears that the contention of the Plaintiff prevailed with the Court and not the Defendant's. The Plaintiff contended that the Defendant ought to have preferred an appeal under Section 97 Code of Civil Procedure or that the order could have been passed under Section 114 Code of Civil Procedure. The Court rejected the contention that the order dated 9.3.76 impugned before him could be rightly passed under Section 15 Code of Civil Procedure. In arriving at this finding the learned Magistrate relied on a decision reported in, AIR 1968 Del 215. The observation in that case was to the effect that "ordinarily" when a Court has made mistake the aggrieved party has to get it corrected by appeal, revision and review and not by invoking the inherent power under Section 151 Code of Civil Procedure. In this view of the matter the Court held that the Defendant's prayer for depositing, and Court's accepting, the mortgaged money was misconceived. The Court observed that the Plaintiff will get the benefit in the circumstances of the mistake of the Court, if any, in the order. It was further observed that the Defendant had slept over his rights for more than 24 years neglecting the legal remedies open to him and therefore he could not invoke the inherent powers of the Court.