JANGALI SINGH Vs. RAMJAG SINGH

JUDGEMENT

(1.) Having heard learned Counsel for the parties, I have come to the conclusion that this application for revision must be allowed. It appears that on 22nd June 1874, one Ajudhia executed a deed of mortgage in favour of one Moti Rai mortgaging certain plots of land in lieu of Rs. 500. By various devolutions the interest of the mortgagor Ajudhia became vested in Ramjag Rai, Jit (or Chet) Narain Rai and Salig Rai and the interest of the mortgagee came to be vested in one Mt. Sahodra Kunwar. On 1 September 1913, Ramjag, Jit (or Chet) Narain and Salig brought suit No. 391 of 1913 for redemption against Mt. Sahodra Kunwar. The claim of the plaintiffs was that they were entitled to redeem on payment of Rs. 512. The Munsif of Ghazipur, in whose Court the suit was brought, decreed the suit on 23 April 1914. He held, however, that the amount which the plaintiffs mortgagors were bound to pay to the defendant mortgagee was Rs. 3489-15-0 and not Rs. 512 as alleged by the plaintiffs. The operative portion of the judgment was in the following words : "Suit is decreed for redemption. Plaintiffs should pay up Rs. 512 + Rs. 2977-15-0 = Rs. 3489-15-0, and defendant's costs of the suit, up to Jeth. Sudi Purnamashi next. If the payment is not made within this time, plaintiffs will be debarred from all rights to redeem the property. Usual decree for redemption to be prepared." A decree followed and the order contained in the judgment, quoted above, was incorporated in the decree, the words with which we are concerned being as follows : "Agar andar miyad ke adaegi na ho to muddayan ke jumla istehqaq in fika-k jaedad saqit honge." There was also para. 2 in the decree as follows : "If the amount aforesaid is not deposited on or before Jeth Sudi Purnamashi next, the plaintiffs shall be debarred from all right to redeem the property."

(2.) The plaintiffs, mortgagors, did not challenge this decree by filing an appeal, or otherwise. They did not also pay to the mortgagee, or deposit in Court for payment to her, the amount mentioned in the decree within the time fixed or, for the matter of that, at any other time. The result was that the decree directing that the plaintiffs be debarred from all right to redeem the property became operative.

(3.) More than twenty seven years later the mortgagors Ramjag Rai, Jit (or Chet) Narain Rai and Salig Rai, filed an application, on 14 October 1941, in the Court of the Munsif, praying that the judgment as well as the decree dated 23 April 1914, be amended by deleting the words, "if the payment is not made within this time the plaintiffs will be debarred from all rights to redeem the property" and by substituting therefor the words, "the property shall be sold." Jangli Rai, Sheo Shanker Rai, Ram Badan Rai and Chandra Deo Rai were impleaded as the opposite parties to this application, apparently on the ground that they were the successors-in-interest of Mt. Sahodra Kunwar. The application purported to be under Secs.151 and 152, Civil P.C., and the sole allegation on which the application was based was that the words of which deletion was sought had been written by the Munsif in 1914 in consequence of an accidental slip (sahwan tahrir hogaya). One of these opposite parties, Jangli Rai, filed a written reply to the application and contended, in substance, that the Court had no jurisdiction to make the amendment prayed for under Secs.151 and 152 of the Code. The Munsif has granted the application and has ordered that the amendment prayed for be made in the judgment and the decree dated 23 April 1914. Jangli Rai has filed this application for revision against that order. The ground on which the Munsif has based his order is that, in his opinion, the direction in question contained in the decree dated 23 April 1914, was wrong and "obviously against the clear provisions of law." He has expressed the view that the then Munsif, instead of directing that the plaintiffs, in the event of their failing to pay the amount declared by the decree to be payable by them on or before the date fixed by the decree, shall be debarred from all right to redeem the property, should have directed that, in the event of default in payment, the property shall be sold. This opinion of the Munsif is based on the view that the mortgage of 1874 was a "purely usufructuary mortgage." The learned Munsif expressed the opinion that either the attention of the Munsif who passed the decree in 1914 was not drawn to the provisions of the law or he "by accident omitted to refer to them at the time of making the said order and pronouncing the said judgment." The Munsif then argues that when a Court commits what in his opinion is a clear mistake of law, it must be held that the mistake "had arisen from an accidental slip or omission" within the meaning of Section 152 of the Code.