GANESH PROSAD AGARWALLA Vs. MONOHAR LAL MULLICK

JUDGEMENT

(1.) This is an application by mortgagees for execution of a decree dated 20 March 1928. The decretal amount was Rs. 24,632-12-9. The mortgagors were three of the sons of Kanailal Mullick, who died on 31 December 1888. Kanailal, by his will, gave a life interest in his property to his widow with remainder to his sons and their heirs. One of the mortgagors, Gokul Lal Mullick, died in 1925, and one of Ms sons, Hariharlal is contesting this application. The widow Uttommoni died on 22 May, 1938. In May 1930, the mortgagees attached the share of the defendants in the compensation money lying with the President of the Calcutta Improvement Tribunal by reason of the compulsory acquisition of Nos. 33 and 33/2, Ratan Sircar Garden Street. In September 1933 the right, title and interest of the judgment-debtors in the compensation money was sold and the proceeds of sale were applied in part satisfaction of the decree. Part of the compensation money was invested in Government promissory notes and the balance in landed property in 67-B Raja Naba Krishna Street and 21-A Shib Shanker Mullick Lane and was held on behalf of Uttommoni as executrix of Kanailal's estate. Uttommoni died in May 1938, and the decree-holders now seek to attach the judgment- debtors interest in these properties, and in the Government promissory notes in the custody of the President of the Calcutta Improvement Tribunal. Gokul Lal Mullick's sons object to the attachment on the ground that they are only liable to the extent of their father's property which came into their hands as his legal representatives and they contend that Gokul Lal had only a contingent and not a vested interest in his father's estate during the life of Uttommoni.

(2.) Mr. Majumdar for the attaching creditors relies first on the words of the decree. Monohar and Harihar are defendants des-eribed in the cause title as "sons, heirs and legal representatives of Gokul Lal Mullick, deceased," and in the body of the decree: "It is ordered and decreed that the defendants personally do pay to the plaintiffs the said sum, etc." Mr. Majumdar contends that the word "personally" attaches a personal liability to each and every defendant and being unqualified it cannot be confined to the liability of Monohar and Harihar in their representative capacity and only to the extent of assets that have come into their hands. On the other hand, it is suggested that the decree does not express the real order of the Court and I am invited to use my powers under Sec. 152 to rectify the decree on the ground that the suggested alteration is correcting what is really a mistake of the ministerial officer by whom the decree or order was drawn up.

(3.) There is no doubt that the Court has the power under Section 152 to correct an error or omission in the decree and this seems to me to be clearly a case in which that power should be exercised. There was no judgment delivered in the case so that it cannot be said that the decree is not in conformity with the judgment but it is clear from the cause title that Harihar and his brother have been sued only in their representative capacity, and it is equally clear that in such capacity their liability is limited to the assets of the person whom they represent which have come into their hands. There has in my opinion been an accidental omission in the operative part of the decree which provides for personal liability, in failing to limit the liability of Gokul's sons. It has been held both in Bombay and in Lahore that the passing of a personal decree against the legal representatives is an accidental slip, which may be corrected under this Section, and, with respect, that is a view in which I concur. The objection is raised that this is an application in execution and that this Court as an executing Court is not entitled to go behind the actual words of the decree even if it has that power under Section 152. In In re Swire, Mellor V/s. Swire (1885) 30 Ch. D. 239 Bowen, L.J. said: Every Court has inherent power over its own records so long as those records are within its power, and it can set right any mistake in them. It seems to me perfectly shocking if the Court could not rectify an error which is really the error of its own minister.