DWIJENDRA KRISHNA DUTT Vs. KEDAR NATH PODDAR

JUDGEMENT

(1.) This is an appeal by the judgment-debtors against an order of the Subordinate Judge reopening an execution proceeding on an application made by the decree-holder on 22nd March 1926. The ground on which the Court below has granted his application for reopening the execution proceeding and allowed him to execute the decree again for a sum of Rs. 2150- 5-0, was that the decree-holder made a mistake in calculating the amount due to him under the decree and in stating in his petition dated 22 March, 1926 that the decree was satisfied on payment of Rs. 5,300 by the judgment-debtors on that date. The learned Subordinate Judge who was the predecessor of the Subordinate Judge who finally decided the case held that the Court had jurisdiction to reopen an execution proceeding on the ground of mistake on the authority of the case of Nil Ratan Khasnobish V/s. Ram Rutton Chatterji [1901] 5 C.W.N. 627 on which the respondent also relies in this Court in support of the judgment of the Subordinate Judge. The Subordinate Judge who decided the case finally went into the question as to how much was due to the decree-holder on 22 March, 1926 on account of the decree that he had obtained against the judgment-debtors. He went into the evidence as regards the different payments made by the judgment-debtors and came to the conclusion that a certain payment of Rs. 2,000 which the judgment-debtors alleged to have made was not true and, therefore, the amount stated in the application for execution of the decree-holder which was made on 16 June 1925 was less by about Rs. 2,000 on account of a mistake made by the decree-holder and he held that the order of dismissal on satisfaction should, therefore, be set aside.

(2.) On appeal by the judgment-debtors it was contended on their behalf that the Court was functus officio and that their case came within the ruling of Fakaruddin Mahomed Ahsan v. Official Trustee of Bengal [1884] 10 Cal. 538. It may, however, be conceded that the Court can reopen an order or decree on the ground of fraud, misrepresentation or mistake; and where an order has been made by consent of parties, it is well settled that that order can be reopened on grounds on which a contract may be set aside or rectified. The application made by the decree-holder on 22 March, 1926 stated that in the execution case of the decree holder: out of the entire sum due to the judgment-debtor Rs. 5,300 was settled as payable to the decree-holder after deduction of the amount remitted

(3.) and as this sum was paid, nothing remained due on account of the decree Upon this application the execution case was dismissed on full satisfaction by the order of the Court. The question is: can the execution proceedings be reopened on the ground stated by the decree- holder that he did not desire to make a remission of more than Rs. 114 while his dues on the decree were over Rs. 7,000. In our opinion, it cannot. Strong reliance has been placed by the respondent on the case of Nil Ratan Khasnobish V/s. Ram Rutton, Chatterji [1901] 5 C.W.N. 627, cited above. In that case, the only question that was debated was whether the Court had jurisdiction either under Section 244, Civil P.C., of 1882 (corresponding to Section 47 of the present Code) or under Section 623 of the old Code (as a matter of review) to reopen an order made of dismissal of an execution proceeding on full satisfaction. It appears from the judgment that some other points were sought to be raised on behalf of the appellants in that case before the Court; but the learned Judge disallowed the endeavour to raise them. What appears in that case is that both sides had represented to the Court that the decree had been satisfied and I think it must have been held by the Court of appeal below that the order of dismissal was made on account of mutual mistake of the decree-holder and the judgment- debtor. In such a case, as I have already stated, an order by consent may be reopened. No authority has been shown nor can it be urged, in my opinion, that any order or proceeding can be reopened on the ground of the mistake of fact of one of the parties to it. The general principle as to mistakes of fact is codified in Section 22, Contract Act, where it has been laid down that a contract is not voidable merely because it was caused by one of the parties to it being under a mistake as to a matter of fact.