(1.) The learned Vakil at the opening of his remarks for the purpose of showing cause stated that this was rather a peculiar matter. I entirely agree with him and I most sincerely hope that it is not only a peculiar matter, but also an exceptional matter, because the facts relating to the proceeding in this case are truly amazing-there is no other word for them. The action was brought in November 1906, very nearly ten years ago by the plaintiff for the recovery of certain land. The Court of first instance gave the plaintiff a judgment. Then there was an appeal to the first Appellate Court. That Court varied the judgment of the first Court by declaring that the plaintiff and the defendants were joint owners of the land. Then there was an appeal to the High Courts and the High Court, consisting of Mr. Justice Brett and Mr. Justice Richardson allowed the appeal and restored the judgment of the Court of first instance, and thereby declared that the plaintiff was-entitled to the possession of the land in question.
(2.) Unfortunately by mistake, it has not been made plain to me how the mistake arose-the decree gave the plaintiff something more than he asked for, inasmuch as it not only declared that the plaintiff was entitled to the possession of the land but it also declared that he was entitled to the possession of a building which was upon the land. That was a matter which was obviously an error-and which, in my opinion, ought to have been set right as soon as the parties saw the decree. If that had been brought to the attention of the learned Judges before the decree was signed, it could have been set right in five minutes. Instead of that, in consequence of that mistake which was made in December 1912, proceedings have been going on in this Court from December 1912 down to May 1916. I think I am justified in saying that the proceedings in this case are nothing short of amazing. What happened then is this: An application was made to Mr. Justice Richardson, the other learned Judge, Mr. Justice Brett, having by this time left the Court. That was made in April 1913, and Mr. Justice Richardson granted a Rule limiting it to this particular point, and calling upon the opposite party to show cause why the judgment and decree of this Court, dated the 12th December 1912, should not be set aside or amended or why such other order should not be made as to this Court might seem fit, on the ground that in giving the plaintiff a decree for the structures on the land this Court went beyond the reliefs claimed in the plaint. So that the rule was granted on that one point only. In June 1913, this Rule was argued before Mr. Justice Richardson; and after argument he made the Rule absolute. I agree with what fell from my learned brother Mr. Justice Mookerjee, during the course of the argument in the case, that there was an end of the matter as soon as the Rule was made absolute, and in accordance with that Rule the decree would, as a matter of fact, have been amended in respect of the point which was mentioned in the Rule that was granted. For some reason or other Mr. Justice Richardson was persuaded to re-hear the case under Order XLVII, Rule 8, of the Code of Civil Procedure and after hearing the case he made the order which has been referred to and which is to this effect: "The judgment will, therefore, be altered in this way, that for the words, with such structures as may be standing on the land , the following will be substituted, that the defendants do remove the structures from the land within two months from the date of this order. In the event of their failing to do so the plaintiff will be at liberty to remove them at the costs of the defendants to be realised in execution of the decree . A corresponding alteration will be made in the decree." Then he went on to say: I make no order as to costs. The mistake should have been brought to notice before the decree was signed." Well, some ingenious person then thought of the point that Mr. Justice Richardson had no jurisdiction to re-hear the case sitting by himself, and although he had jurisdiction to grant the Rule and to make the Rule absolute and thereby to make an order by which the judgment would be amended, still he had no jurisdiction to re-hear the case in the proper sense of the word, as he by himself could not constitute a Division Bench. Therefore, this point was taken and an appeal from his decision was instituted and it was heard in this Court by the late Chief Justice and Mr. Justice Nalini Ranjan Chatterjea, and they decided that he had no jurisdiction to re-hear the case, because he was not a Division Bench, and they directed that the appeal should be re-heard. As a result of that, two other learned Judges were called upon to hear this appeal, and Mr. Justice Holmwood and Mr. Justice Mullick heard it on the 24th of November 1915, some two years after the order which was made by Mr. Justice Richardson, and having heard it they made an order identical in terms with the one that was made by Mr. Justice Richardson in the month of June 1913. The parties were not satisfied even then, but some of the defendants came here and obtained a Rule upon the ground that Mr. Justice Holmwood and Mr. Justice Mullick had not re-heard the case, If I may say so with every respect to the learned Judges, I think they took a reasonable view of the matter. What they did was, they said that the whole of this matter arose from an obvious error, upon which the Rule was granted for review by Mr. Justice Richardson, and they confined themselves to that error and declined to go any further and said they had discretion in the matter. It is argued by the learned Vakil that they were wrong in so doing and he wishes us to make the Rule absolute, so that this case may be re- heard by two other learned Judges of this Court.
(3.) All I can say, speaking for myself, is this as far as I can understand the proceedings, when Mr. Justice Richardson made that Rule absolute in June 1913, by reason of which the judgment and the decree would, as a matter of course, be amended in the way he intended them to be amended and in the way he intended them to be drawn up, from that moment every other proceeding was superfluous If we were to make this Rule absolute it would be a travesty of justice to which I will not be a party.