U LATCHAYYA Vs. GSEETHAMMA

JUDGEMENT

(1.) In 1906 the brother of defendant 1 mortgaged some land to the mother of the three plaintiffs. After their mother's death the plaintiffs in 1919 brought a suit for sale on that mortgage, O. S. No. 302 of 1919, on the file of the District Munsif of Razole, and got a preliminary decree. There was no appeal against that decree. Not long after that decree had been made the plaintiffs discovered that in the mortgage deed Survey No. 106 had been entered by mistake for Survey No. 168, and that that mistake had been repeated in their plaint and in the decree which they had obtained. They then brought the present suit, praying for rectification of the mortgage deed by the substitution of Survey No. 168 for Survey No. 166 and for a similar rectification of the decree in O.S. No. 302 of 1919. It was found both by the District Munsif and by the Subordinate Judge on appeal in the present suit that there had been a common mistake by the parties to the mortgage deed and that in consequence of that mistake Survey No. 166 had been entered in the deed when the parties intended to deal with Survey No. 168. That finding of fact in regard to the common mistake made is binding upon us. The District Mnnsif ordered rectification as prayed by the plaintiffs, both of the mortgage deed and of the preliminary decree, and that decision was confirmed by the Subordinate Judge on appeal. Defendant 1 preferred a second appeal to this Court which was dismissed by Waller, J. The present appeal is again by defendant 1, against Waller, J s., decision

(2.) Waller, J., in a brief judgment remarks that it has been contended before him that, though the mortgage deed might bo rectified, the decree made upon it could not bo rectified in the suit. That contention he overruled on the strength of Bepin Krishna Ray V/s. Jogeshwar Ray A.I.R. 1921 Cal. 730 and Venkatarama Ayyar v. Elumalai Naicker A.I.R. 1923 Mad. 442. Wo have examined the records in Venkatarama Ayyar V/s. Elumalai Naicker A.I.R. 1923 Mad. 442, so far as they are available, and that case does not appear to be capable of the interpretation which Waller, J., put upon it. It is not clear from the records available whether the decree in the first suit was ever rectified in the second suit; but it is quite clear from the judgment of Schwabe, C. J., in the second appeal that he found no rectification even of the deed to be necessary as the land was in his opinion sufficiently identified by the description originally given in the deed and in the decree in the first suit. Nor was there any discussion in his judgment, with which Wallace, J., agreed, of the question whether the decree in the first suit could have been rectified in a second suit. But Bepin Krishna Ray V/s. Jogeshwar Ray A.I.R. 1921 Cal. 730 is a clear authority, if it is to be followed, in support of Waller, J s., judgment. That was a decision of Mookerjee and Buckland, JJ., of the Calcutta High Court. There in the second suit the mortgage deed and the decree obtained upon that mortgage deed in a previous suit had been rectified. It was found that there had been a common mistake in making the mortgage deed and the decision was that the deed and the decree obtained upon it might both be rectified in the second suit, provided that would not infringe the rights of any third party acquired in good faith and for value, as the learned Judges found that it would not.

(3.) That decision was followed a short time afterwards by Mookerjee, J., himself and Cuming, J., in Kailas V/s. Bijay A.I.R. 1923 Cal. 18, but without any further discussion. It is in conflict with an earlier decision of Jenkins, C. J., and Holmwood, J., in Kusodhaj Bhukta V/s. Braja Mohan Bhukta [1910] 43 Cal. 217, and in conflict with another earlier decision of a different Bench of the Calcutta High Court in Bhonda Singh V/s. Dowlat Roy [1912] 14 I.C. 93. In the previous suit which led to Kusodhaj Bhukta V/s. Braja Mohan Bhukta [1910] 43 Cal. 217, the plaintiff had claimed a one third share of certain property, and the Judge in his judgment had found that he was entitled to that share. But in the decree by some accident a half-share was provided as the share which the plaintiff was entitled to recover. In the second suit, which came before the High Court as Kushodhaj Bhukta V/s. Braja Mohan Bhukta [1910] 43 Cal. 217, one of the defendants in the previous suit sued to set aside the decree in the previous suit on the ground of mistake. Jenkins, C. J., and Holmwood, J., found that such a suit, to set aside the decree in the previous suit on the ground of mistake was unsustainable. They referred to a previous decision of a Bench of the Calcutta High Court, Jogeshwar Atha V/s. Ganga Bishnu [1904] 8 C.W.N. 473, in which it had been hold that such a suit to set aside a previous decree was possible; but Jenkins, C. J., pointed out that that decision was based on a misapprehension of the law in England as disclosed by a case which had been cited, namely, Ainsworth V/s. Wilding [1896] 1 Ch. 673.