PEARI DAI DEBI Vs. JOTINDRA NATH BOSE

JUDGEMENT

(1.) We are invited by learned Counsel for the defendants in this case to recall the order made on the 1 March 1909 and to dismiss the suit. The application is of a somewhat novel character, and it is consequently necessary to state the circumstances under which it has been made.

(2.) This action which was commenced as far back as the 20 June 1898 to enforce specific performance of an agreement made on the 21 June 1895, was dismissed by Mr. Justice Chitty on the 6 April 1908. An appeal was preferred against his judgment, and on the 1st March, 1909, judgment was delivered in the appeal. The concluding: portion of that judgment is as follows: "There is, how-ever, one matter which has not been argued before us or in the Court of first instance, viz., that the executors of Bangsa Gopal are necessary parties to this suit. This suit has been brought by the heirs of Bengsa Gopal. The contract is, however, one entered into by the -executors of his will and they ought to have been the plaintiff. In these circumstances, the record must be amended by adding the executors as co-plaintiffs, and subject to that being done, there must be a decree for specific performance of the agreement as against the heirs of Troylukho Nath Bose. It is not denied that the defendants are entitled to a reduction of the purchase money in respect of the sum of Rs. 1,046-13 received by the executors from the Monghyr Court. This appeal must, therefore, be allowed with costs, both here and in the Court of first instance."

(3.) No steps, however, have been taken, till quite recently, to bring the executors of Bangsa Gopal on the record as directed by this judgment; consequently, an application was made by the defendants last week for an order upon the plaintiffs to bring the executors of Bangsa Gopal on the record and also for an order, in the alternative, that on failure to do so the suit should stand dismissed. This application was made on notice, and the plaintiffs obtained time till the 27 August to carry out the order of the Court. On the 27th, an application was made to bring the executors of Bangsa Gopal on the record, and, as soon as it was intimated by the Court that the application would be granted, the learned Counsel for the defendants applied that the suit should be dismissed. His contention in substance was, that now that the suit had been properly constituted, it was barred by limitation under Section 22 of the Limitation Act, and in support of this position, he placed reliance on the case of Imam Ali V/s. Baij Nath Ram Shah 33 C. 613; 10 C.W.N. 551: 3 C.L.J. 576 and Ram Kinkar Biswas V/s. Akhil Chunder Chaudhri 35 G. 519; 2 M.L.T. 137; 5 C.L.J. 242; 11 C.W.N. 350 (F.B.). The learned Counsel for the plaintiffs objected that it was not open to the defendants to impeach the validity of the judgment delivered on the 1 May, 1909, in this indirect manner. To this, the learned Counsel for the defendants answered that so long as the order had not been finally drawn up, the Court had inherent power to rescind the order if it was shown that the order was erroneous and should never have been made. As authorities for that view, he placed reliance on the cases of In re St. Nazaire Company (1879) 12 Ch. D. 88, In re Suffield and Watts (1888) 20 Q.B.D. 693; 36 W.R. 584; 58 L.T. 911; 5 M.B.R. 83 and Neale V/s. Gordon Lennox (1902) App. Cas. 465; 73 L.J.K.B. 939; 66 J.P. 757; 87 L.T. 341; 18 T.L.R. 791; 51 W.R. 140.