RAM SWARUP SINGH Vs. KAMALA PRASAD SINGH

JUDGEMENT

(1.) This application is directed against an order of Mr. R. P. Sinha, Subordinate Judge, Gaya, by which he refused to re-hear Mortgage Suit NO 9 of 1946 against some of the defendants. The situation which has arisen in this case is a somewhat peculiar one, and such a situation would not have arisen if the Subordinate Judge who passed the preliminary decree in the suit would have acted with care and circumspection. The suit was a suit to enforce several mortgage bonds, and there were two sets of defendants, the first set being the members of the mortgagors' family and the second set being the subsequent transferees with regard to the mortgaged properties Defendants 6, 7 and 10 out of the defendants first party were minors, and while defendants 6 and 7 were described as minors under the guardianship of their respective fathers who also were the defendants in the suit, defendant 10 was described as a minor under the guardianship of his brother who was defendant 9 in the suit On 12th November 1946, the plaintiffs and the major defendants 2 to 5 filed a petition of compromise with a prayer that the suit be disposed of in terms of the com-promise petition. Before that date, one Mr. Abdul Heyat, Pleader, had been appointed as the guardian ad litem of the minors defendants 6, 7 and 10, as their natural guardians had not appeared on their behalf, and hence after the petition of compromise had been filed the Court drew the attention of the plaintiffs and the defendants who had appeared, to the fact that the pleader who had been appointed as the guardian of the minor defendants had not signed the compromise petition on their behalf The parties were directed ''to remove the defects" Thereafter on 17th December 1946, defendant 2 filed a petition for permission to compromise on behalf of the minor defendants 6, 7 and 10 as their natural guardian, but this petition was not allowed, and it was noted in the order dated 7th December 1946 that defendant 2 had not been described in the plaint as the natural guardian of these minor defendants. On 7th January 1947, however, another petition was filed by defendants 2 to 5 in which it was stated that the pleader who had been appointed as the guardian of the minor defendants was not available as he had accepted service under the Government as a Munsif, and the prayer in this petition was that defendant 2 be permitted to sign the compromise petition as the guardian of the aforesaid minor defendants. The following order was passed on this date, and this is the order on the basis of which the preliminary decree for the sale of the mortgaged property was drawn up : Let the suit be decreed in terms of the compromise petition which will form part of the decree. Permission to enter into compromise is granted to the natural guardian of the minors as prayed, pleader guardian is discharged, In the circumtances of the case, I am satisfied that the compromise is for the benefit of the minor defendants." The preliminary decree for the sale of the mortgaged property was then drawn up, and it says that "the suit is decreed in terms of the compromise petition for Rs. 5000 as mentioned in the compromise petition which will form part of the decree." On 1st June 1948, the plaintiffs filed a petition for passing a final decree in the suit, but this petition was opposed by some of the defendants whose contention was that the decree could not be made absolute against all the defendants in as much as the preliminary decree had been passed only against defendants 2 to 5 who had entered into the compromise. This contention found favour with the learned Subordinate Judge who by an order dated 27th January 1949 directed that a "final decree be prepared only against defendants 2 to 5 per terms of compromise." Thereafter in March 1949 the plaintiffs filed a petition for rehearing the suit as against the defendants who had not joined in the compromise, and this petition was disposed of by the learned Subordinate Judge by the order dated 6th July 1949 against which order the present application in revision has been filed by the plaintiffs. The learned Subordinate Judge refused to rehear the suit, but modified the final decree already passed by directing that the final decree would be deemed to be a decree not only against defendants 2 to 5 but also against defendants 1, 8 and 9. The operative portion of the judgment of the learned Subordinate Judge runs as follows :

(2.) The contention on behalf of the applicants before us is that the Court below has failed to exercise a jurisdiction vested in it by law because it has not disposed of the suit finally against the minor defendants and the defendants second party by either decreeing the suit or dismissing it as against them, and, in my opinion, this contention is well founded. The claim in this suit was for Rs. 10,886 and according to the compromise the defendants were liable to pay only Rs. 8,000 out of which they paid Rs. 3,000 at the time of the compromise. Paragraph (1) of the compromise petition says that the decree would be deemed to be a final decree and that the plaintiffs will not be under the necessity of filing an application for making the decree final. The prayer portion of the compromise petition clearly shows that the decree was to be passed only in terms of the compromise petition. Now admittedly, it is only defendants 2 to 5 who were parties to the compromise and though the order dated 7th January 1947 shows that defendant 2 was permitted to enter into the compromise on behalf of the minor defendants as their natural guardian, he was not their natural guardian. In his order dated 17th December 1946, it was distinctly pointed out by the learned Subordinate Judge that defendant 2 had not been described as the natural guardian of these minor defendants, and in his order dated 6th July 1949 also against which this present application has been preferred the learned Subordinate Judge says that defendant 2 who waited to sign the compromise petition on behalf of the minor defendants was not their natural guardian. It was, therefore, an obvious mistake on the part of the learned Sub-ordinate Judge to have permitted defendant 2 on 7th January 1947 to enter into the compromise on behalf of the minor defendants 6, 7 and 10 as their natural guardian. The learned Subordinate Judge has rightly pointed out that he was not only not their natural guardian, but even after the permission had been accorded, he did not sign the compromise petition as their guardian. The compromise petition, as already pointed out, had been filed on 12th November 1946, and it underwent no change even after the aforesaid permission had been granted. In other words, even after this permission had been granted, defendant 2 did not sign the compromise petition as the natural guardian of the minor defendants 6, 7 and 10. Certainly, he had signed the compromise petition on 12th November 1946 in his personal capacity, and he never thereafter signed it on behalf of the minor defendants. The learned Subordinate Judge, therefore, rightly held that the compromise decree could not be treated as a decree against the minor defendants. If on the facts he found that it could not be treated as a decree even against the defendants second party who were said to be transferees with regard to a portion of or the entire mortgaged property, we have to take it that no valid decree was passed even against the transferee defendants. I need not repeat that the compromise decree most clearly and distinctly shows that the suit had been decreed only on the basis of the compromise to which the transferee defendants were no parties. The question there-fore, arises whether the suit should be revived from the stage at which it was left when the compromise petition was filed or acted upon and should be continued as against the defendants against whom it has neither been decreed nor dismissed. The position certainly is that the suit has neither been decreed nor dismissed as against the other defendants, and for this position the Court is greatly responsible. It ia the duty of a Court to relieve parties against injustice occasioned by its own acts and oversights, and this principle has been recognised in several authorities and finds expression in Section 151, Civil P. C. Section 151, Civil P. C, can certainly be applied in contingencies of this character, and its terms are wide enough to include a case of this nature. The Code of Civil Procedure has never been regarded to be so exhaustive as to cover cases of all character, and, therefore, a section was enacted which enables the Court to act upon the assumption of the possession of inherent powers for doing real and substantial justice between the parties, and for preventing any injustice being done on account of its own careless acts. It was held by the Allahabad High Court in Bhagwan Dayal v. Param Sukh Das, 39 ALL. 8 : (A. I. R. (4) 1917 ALL. 477), that where proceedings relating to the appointment of a guardian add item for a minor in a suit were declared to be invalid and a decree passed against a minor had been set aside, because the minor was not properly represented in the suit, the Court whose duty it ultimately to appoint a guardian has inherent power under Section 151, Civil P. C. to revive the suit under Order 9, Rule 13 of the Code. This is a much better case for the plaintiffs than the one which their Lordships of the Allahabad High Court had to decide, because in this present case the decree has not been declared to be invalid in any regular suit, and, in fact, the preliminary decree as prepared by the learned Subordinate Judge looks, like a decree against all the defendants including the minors who did not join the compromise. If proceedings can be revived after they are declared invalid in a regular suit, there is no reason why the proceeding in this case should not be revived The case of the plaintiffs as based on the mortgages has not been tried against all the defendants, and simply, by oversight, a decree in terms of the compromise was passed even against the defendants who did not join in the compromise. In Kripa, Kishan v. Babu Lal, 45 ALL. 606 : (A. I. R. (11) 1924 ALL. 225), a decree in a suit against a minor had been set aside upon the ground that the minor defendant was not properly represented, and an application was thereafter made for the continuance of the suit after proper appointment of a guardian. This application having been rejected by the Court, the High Court of Allahabad was moved in revision, and their Lordships held that the suit should he deemed to be revived from the point at which the application for appointment of the guardian was to be made. I think the following observation of their Lordships is important for our purpose :

(3.) These two decisions were followed by the same Court in a very recent case Talib Ali v. Piarey Lal, 52 ALL. 924 : (A.I.R. (17) 1930 ALL.644), and according to the view taken in this case also the Court in the exercise of its inherent jurisdiction under Section 151, Civil P. C. can continue the suit against those defendants who had not joined in the compromise. The English case, Henry William Hatton v. Hugh Harris, 1895 A. c. 547: (62 L. J. P. C. 24), also appears to me to be an authority in point and it supports the principle that mistakes in judgments and errors arising from such slips or omissions may at any time be corrected by the Court or a Judge on motion or summons without appeal, A Full Bench of this Court held in Nirsan Singh v. Kishuni Singh, 10 pat. 516 : (A. I. R. (18) 1931 pat. 04 F. B.) that if, upon an issue raised and tried in a subsequent suit, it is held that the claim in the original suit was false and fraudulent, the effect of such a decision is to put an end to that suit which cannot be revived and retried, but that if on the other hand the ex parts decree is set aside on the ground that it was obtained by suppression of summons and the defendant in the original suit was prevented from appearing in the suit and defending it by reason of fraud committed by the plaintiff, the original suit is revived and the plaintiff of that suit is entitled to have it tried and disposed of in accordance with law. This should be regarded as a much better case, because here the undisputed position is that the suit was neither decreed nor dismissed against the defendants other than defendants 2 to 5, The plaintiffs and their lawyers may not be free from blame inasmuch as they also did not act with perfect care in this case, but certainly they can reasonably contend that they were misled by the view which the Court had taken. It would appear from the order of the learned Subordinate Judge dated 27th January 1949 that the plaintiffs, because of the order passed by the learned Subordinate Judge on 7th January 1947 on the basis of which the preliminary decree had been prepared, pressed for a final decree in the suit against all the defendants. But the Subordinate Judge could not accede to the prayer of the plaintiffs which rested upon a judgment which was obviously erroneous and thus perpetuate the error which had been committed by his predecessor. This is a case in which the order on the basis of which the preliminary decree was passed against all the defendants is on the face of it defective, irregular, and inoperative against all the defendants of the suit, and the Court has to relieve the plaintiffs against the injustice done to them by its own acts, mistakes or oversights. The Bombay High Court in Karim Mohammad Jamal v. Bajooma, 12 Bom. 174 held that the Court had inherent powers over its own records so long as those records were within its powers and that it could set right any mistake in them. Sargent C. J., quoted the following passages from the judgments of Lindley L. J., and Bowen L, J., which is to be found at p. 183 of the report :