NARAYAN SHALIGRAM Vs. MITHARAM

JUDGEMENT

(1.) 1. There has been an unfortunate miscarriage of justice owing to the erroneous procedure adopted by the lower Court in 1927, and the question is whether the Courts can now rectify it. In 1925 Mitharam, who is now the nonapplicant, filed two suits against the applicant Narayan, No. 16 of 1925 for the possession of certain property and No. 388 of 1925 for the mesne profits of that property. It was agreed that the evidence recorded in Civil Suit No. 16 should be read as evidence in Civil Suit No. 388, but the suits were not consolidated. The learned Subordinate Judge, who was then presiding over the Court, passed a decree in the plaintiff's favour on 30th June 1927 in Civil Suit No. 16, in which he gave the plaintiff not only the possession that he had asked for but also mesne profits, and on the same day he wrote what is entitled a judgment in Civil Suit No. 388, stating that, as the plaintiff's claim for mesne profits had been decreed in Civil Suit No. 16, this suit had become superfluous and was accordingly dismissed; a decree was drawn up in those terms. The plaintiff, who had obtained all that he had asked for, naturally did not appeal, but the defendant appealed against the decree in Civil Suit No. 16. His appeal was dismissed in the Court of the District Judge, but in second appeal this Court held on 1st September 1932 that the plaintiff could not be given a decree for mesne profits in a suit in which he claimed possession only, and that part of the decree awarding him mesne profits was accordingly struck out. On 14th September 1932 the plaintiff applied to the Court of first instance to set aside the decree in Civil Suit No. 388 and to proceed with the hearing.

(2.) THE plaintiff's application was made Under Sections 151 to 153, Civil P.C., "or other suitable powers vested in this Court." The lower Court held that it (had power Under Section 153 to set aside the decree and set it aside. The defendant has now applied for revision of that order. Section 152 has clearly no application, as the mistakes in the judgment and decree were not clerical or arithmetical or errors arising from any accidental slip or omission. I am also inclined to agree with the view expressed by Batten, A.J.C., in Balaprasad v. Kanoo (1912) 8, N.L.R 13 that Section 153 applies only to amendments made while the suit is still proceeding. I am of opinion however that the Court had power to set aside the decree under Section 151.

(3.) IN Mohammad Raza v. Bam Saroop 1929 Oudh 385, where a decree was passed on the basis of a compromise admitted without authority by one party on behalf of another, it was held that it was open to the latter party to invoke the inherent power of the Court to get the judgment and decree amended Under. Sections 151, 152 and 153 so that his name might be removed from the decree after the period of limitation prescribed for appeal or review had expired and the judgment and the decree had become final. In Lachhman Rai v. Jang Bahadur Rai 1934 All 287. it was held that, where a Court passes an order under a misapprehension of facts, it is open to it under its inherent power to set aside such order when the true facts are brought to light. In Harjimal v.. Firm, Shantilal Sakalchand 1934 Nag 109, Bose, A.J.C., held that, where through a mistake of the Court to which the plaintiff was no party a decree was passed without consideration of the plaintiff's applietion for an extension of time, the Court had inherent power to rectify its mistake.