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Laxman Mahadev Bankar Vs. Maruti Rambhau Nikam - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 187 of 1938
Judge
Reported inAIR1939Bom389; (1939)41BOMLR800
AppellantLaxman Mahadev Bankar
RespondentMaruti Rambhau Nikam
Excerpt:
.....11 of the memorandum of appeal as well as the objection regarding the interest mentioned in paragraph 9 of the memorandum of appeal were also given up. he was apparently then satisfied with that decree as he never cared to appeal from, it to the high court. 1. he helped them with money for appealing against the decree of the trial court and securing at least a partial success. of course if the decree had created a charge on the property, then, even though he may have purchased it in good faith, his purchase would have been subject to the charge created by the decree. the petitioner naturally took the decree as it stood and was satisfied that no charge had been created on the property by that decree. it is not disputed that he purchased the property for valuable consideration, and i see..........preliminary objections were raised on behalf of opponent no. 1 in this court, viz. that, as the amended decree was not appealed against, this application for revision of the order directing the amendment is not competent and that the proper remedy is an appeal against the order of the learned assistant judge as it amounts to a decree and not an application for revision, there is no substance in either of these contentions. the learned assistant judge has ordered an amendment of the decree, and if that order be held to be wrong, then the original decree stands as it is, and the amended decree automatically disappears. the order of amendment was made under sections 151 and 152 of the civil procedure code, and it does not itself amount to a decree. hence the present application for.....
Judgment:

Lokur, J.

1. This is an application in revision against an order of the Assistant Judge of Poona directing an amendment of the decree passed by his predecessor in Appeal No. 23 of 1930, in such a way as to make the decretal amount a charge on the property in suit.

2. The facts of the case may be briefly stated. The property in suit belongs to opponents Nos. 2 to 8, Pardeshis of Pimpri. They mortgaged it to the petitioner Laxman Mahadev Bankar and had subsequently entered into a contract with opponent No. 1 to sell the said property and had received some advance as earnest money. Subsequently opponent No. 1 filed a suit to specifically enforce the agreement or, in the alternative, to recover the amounts advanced from time to time together with interest thereon as a charge on the property agreed to be sold. The trial Court passed a decree in favour of opponent No. 1 for Rs. 1,322-7-0 including past interest at the rate of twelve per cent. per annum and future interest at six per cent, per annum and ordered the decretal amount to be a charge on the property. The Pardeshis filed appeal No. 23 of 1930 complaining inter alia that the amount of the charge was held to be more than they had received, that opponent No. 1 was not entitled1 to any interest and that the decretal amount should not have been made a charge on the property. The appellate Court held that the amount advanced was only Rs. 608 and refused to allow any interest on that amount. It reversed the decree of the trial Court and substituted in its place the following order:

Plaintiff's claim to the extent of Rs. 608 decreed with costs, in proportion, of both the Courts against defendants Nos. 1 to 7 (Pardeshis). The remaining claim of the plaintiff is dismissed with costs.

That decree was passed on December 11, 1930. The petitioner had also obtained an agreement of sale from the Pardeshis on November 8, 1927, and about five months after the decree in appeal No. 23 of 1930 was passed, he obtained a sale-deed from the Pardeshis on May 19, 1931, purporting to convey the property in suit to him for Rs. 4,500. Opponent No. 1 presented two darkhasts to execute the decree of the appellate Court in 1931 and again in 1932 in which he sought for the attachment and sale of the property for the recovery of his decretal amount. Both these darkhasts were dismissed for want of prosecution, and a third darkhast was presented on February 5, 1935. On the application of the Pardeshi judgment-debtors the petitioner was added as an opponent, as he had purchased the property when the decree was sought to be executed. It was then brought to the notice of opponent No. 1 that the decree of the appellate Court had not placed any charge on the property and, therefore, the applicant, who was not a party to the decree, was not bound by it. The darkhast was then withdrawn, and opponent No. 1 presented an application on August 4, 1936, to have the decree in appeal No. 23 of 1930 amended by the addition that the decretal amount should be a charge on the property. The learned Assistant Judge granted the application and amended the decree accordingly.

3. Two preliminary objections were raised on behalf of opponent No. 1 in this Court, viz. that, as the amended decree was not appealed against, this application for revision of the order directing the amendment is not competent and that the proper remedy is an appeal against the order of the learned Assistant Judge as it amounts to a decree and not an application for revision, There is no substance in either of these contentions. The learned Assistant Judge has ordered an amendment of the decree, and if that order be held to be wrong, then the original decree stands as it is, and the amended decree automatically disappears. The order of amendment was made under Sections 151 and 152 of the Civil Procedure Code, and it does not itself amount to a decree. Hence the present application for revision is maintainable.

4. On the merits I do not think the learned Assistant Judge was right in allowing the decree to be amended after a lapse of nearly six years from the date of the decree sought to be amended. It is true that if there is a clerical or arithmetical mistake in a judgment, decree or order, or an error arising therein from any accidental slip or omission, it can be corrected, at any time by the Court, either of its own motion or on the application of any of the parties, under Section 152 of the Civil Procedure Code. Similarly, if a correction is required or necessary for the ends of justice or to prevent abuse of the process of the Court, the Court has inherent power to make the necessary correction under Section 151 of the Civil Procedure Code. But in this case I do not find that there was any clerical or arithmetical mistake in the judgment, decree or order or any error arising therein from any accidental slip or omission. The learned Assistant Judge has drawn an unwarranted inference from the judgment of his predecessor in appeal No. 23 of 1930. The final order in the judgment, which I have quoted above, is quite clear, and there is no ambiguity about what is intended. It is true that under Section 55, Sub-section (6)(b), of the Transfer of Property Act, the buyer is entitled to a charge on the property, as against the, seller and all persons claiming under him, to the extent of the seller's interest in the property, for the amount of any purchase-money properly paid by the buyer in anticipation of the delivery and for interest on such amount, Such a charge was created by the trial Court both in respect of the purchase-money which had been advanced and for interest on that amount. The Pardeshis were not satisfied with that order, and in their grounds of appeal they urged all the three points which I have stated above. The appellate Court in an earlier part of its judgment observed:

The only point raised for determination is:-Whether the payment of Rs. 1,052-7-0 by the plaintiff to the defendants Nos. 1 to 7 is proved or any portion thereof?

and on that issue it recorded a finding that the amount advanced was Rs. 608 only. It is argued from this that before the appellate Court the other points raised in the memorandum of appeal must not have been pressed; but such an inference is negatived by the remaining part of the judgment of the appellate Court. The appellate Court observed that 'the other points regarding the execution of the sate-khat (exhibit 69) under misrepresentation and undue influence and its binding character as against defendants Nos. 1 to 7 have been abandoned and not at all challenged in appeal.' It was not there stated that the objection to the charge which was specifically mentioned in paragraph 11 of the memorandum of appeal as well as the objection regarding the interest mentioned in paragraph 9 of the memorandum of appeal were also given up. On the contrary, the appellate Court specifically considered the objection regarding the interest and observed that 'looking to the conduct of the plaintiff and in the absence of any proof as to when he advanced any particular amount to the defendants, I do not think that I shall be justified in granting him any interest prior to the institution of the suit.' Thus, although under Section 55, Sub-section (6)(b), of the Transfer of Property Act, the plaintiff was entitled to add interest also to the charge on the property, the appellate Court specifically refused to grant any interest at all. Thus from the passage at the opening of the judgment in appeal No. 23 of 1930, it cannot be inferred that the other grounds specifically raised in the memorandum of appeal were not pressed. Whether they were pressed or not is to be deduced from the order actually passed by the appellate Court. The learned Assistant Judge should not have concerned himself with the question as to what reliefs opponent No. 1 was entitled to and whether all those reliefs were granted by his predecessor or not, as he would then be sitting in appeal against the judgment of his predecessor. In fact opponent No. 1 himself must have known that the decree of the lower Court did not keep any charge on the property. He presented three darkhasts in 1931, 1932 d 1935, and at least at that time he must have realized that there was no charge on the property agreed to be sold to him; otherwise he would not have asked that the property should be attached and sold for the recovery of the decretal amount. He was apparently then satisfied with that decree as he never cared to appeal from, it to the High Court. It was only in the third darkhast of 1935, when the applicant was added as an opponent and when he claimed to have purchased the property after the decree was passed, that opponent No. 1 realized his mistake in not appealing from that decree to have a charge placed on the property. In these circumstances, I do not think that the decree should be amended in the exercise of the powers conferred by Sections 151 and 152 of the Civil Procedure Code.

5. Moreover, even assuming that the appellate Court intended to create a charge, but omitted to mention it in the decree or in the final order through oversight, still it should not be amended long afterwards so as to prejudice the interests acquired in the intervening period. The petitioner had already obtained a sate-khat as far back as in 1927 from the Pardeshis, but he had not taken a sale-deed during the pendency of the litigation. The appellate Court gave its judgment on December 11, 1930, and after allowing sufficient time and waiting to see if any appeal would be preferred from that decree, the applicant obtained the sale-deed from the Pardeshis on May 19, 1931. During the interval opponent No. 1 took no steps to have the decree either amended or modified in appeal. The applicant naturally took the decree as it stood, which expressly reversed the decree of the trial Court and deleted that part which had placed a charge of the decretal amount on the property. It may be that the applicant actively helped the Pardeshis in the prosecution of their litigation against opponent No. 1. He helped them with money for appealing against the decree of the trial Court and securing at least a partial success. There was nothing wrong in this, and, if for the satisfaction of the amounts advanced by him he purchased the property which had been freed from the charge by the decree of the appellate Court, it cannot be said that he was not a bona fide purchaser. Of course if the decree had created a charge on the property, then, even though he may have purchased it in good faith, his purchase would have been subject to the charge created by the decree.

6. Several cases have been cited on behalf of opponent No. 1 to show that a decree may be amended so as to convey the real intention of the Court, but each of those cases was decided on its own peculiar facts. In Khandesh Lakshmi Vilas Mills, Co., Ltd. v. Graduate Coal Concern, Jalgaon : AIR1935Bom75 it was specifically held that there was a mistake on the part of the ministerial officers of the Court in not drawing up the decree correctly in accordance with the description of the parties in the plaint. The principle is laid down by Lord Watson in Hattn v. Harris [1892] A.C. 547 as follows (p. 560):

When an error of that kind has been committed, it is always within the competency of the Court, if nothing has intervened which would render it inexpedient or inequitable to do so, to correct the record in order to bring it into harmony with the order which the judge obviously meant to pronounce.

7. In Charan Das v. Amir Khan : (1920)22BOMLR1370 the Privy Council laid down that the power of amendment should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, but there are cases where such considerations are outweighed by the special circular stances of the case; and on that principle the pleadings may be amended for the first time in appeal. But the principle which applies to the amendment of the pleadings cannot be extended to the amendment of a decree after interest of third parties has accrued. In Karim Mahomed Jamal v. Rajooma I.L.R. (1887) 12 Bom. 174 it is observed that an order, even when passed and entered, may be amended by the Court so as to carry out the intention and express the meaning of the Court at the time when the order was made, provided the amendment can be made without injustice, or on terms which preclude injustice.

8. As I have already said, in this case the petitioner, after waiting to see if opponent No. 1 would take any steps to have the decree of the appellate Court amended, purchased the property, and there is no reason to suppose that he should have known that several years thereafter an application for its amendment would be made and granted. The petitioner naturally took the decree as it stood and was satisfied that no charge had been created on the property by that decree. It is not disputed that he purchased the property for valuable consideration, and I see no reason to assume that merely because there was a possibility of an application for amendment in future, he must be presumed not to have acted in good faith. I, therefore, hold that after the interest in a stranger had been created, the decree should not have been amended, so as to affect it, especially in view of the laches on the part of opponent No. 1.

9. For these reasons I make the rule absolute, set aside the order passed by the learned Assistant Judge and dismiss the application of opponent No. 1 for amendment of the decree. Opponent No. 1 will pay the petitioner's costs in both the Courts and bear his own.


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