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Karim Mahomed Jamal and anr. Vs. Rajooma and Noorbai - Court Judgment

LegalCrystal Citation
SubjectContract
CourtMumbai
Decided On
Judge
Reported in(1888)ILR12Bom174
AppellantKarim Mahomed Jamal and anr.
RespondentRajooma and Noorbai
Excerpt:
.....performance - decree in favour of plaintiff--rectification of decree, on application of defendant--motion to set aside decree dismissed--subsequent application to rectify decree--res judicata--practice--objection taken at hearing that the application made to court was not the application of which notice had been, given to opposite party--preliminary point. - - the declaration which the decree contains, that the plaintiffs are entitled to have the agreement of the 27th september, 1871, specifically performed, implies that he is himself specifically to perform it, as well as the defendant. it seems to me that it would be perfectly shocking if the court could not rectify an error which is really the error of its own minister. many things may have happened to affect the position of the..........to refuse this application on that ground.3. in this case, however, the objection, that the notice of motion did not state that an application would be made to rectify the decree, was not made until mr. macpherson had concluded his argument, and was then too late. the question, therefore, now is, whether the order asked for can be made, having regard to the terms of the decree; and, if not, whether the decree can now be rectified so as to allow the order to be made.4. under the terms of this decree i should not myself have had any difficulty in making all the orders necessary against both parties for its performance. the declaration which the decree contains, that the plaintiffs are entitled to have the agreement of the 27th september, 1871, specifically performed, implies that he.....
Judgment:

C. Sargent, C.J.

1. The question before us arises on the notice of motion given by the defendants to the plaintiffs on the 28th April, (His Lordship read the notice above set forth.) The motion having come before Bayley, J., he has referred it to this Court for decision.

2. The whole matter has been referred to us, and there is no doubt, therefore, that the plaintiff might have taken here any objection which he might have taken before. If, when the case first came on before Mr. Justice Bayley, it had been objected that the defendants, on the notice which they had given, could not ask for a rectification of the decree, and that objection had been repeated here, I should have been disposed to refuse this application on that ground.

3. In this case, however, the objection, that the notice of motion did not state that an application would be made to rectify the decree, was not made until Mr. Macpherson had concluded his argument, and was then too late. The question, therefore, now is, whether the order asked for can be made, having regard to the terms of the decree; and, if not, whether the decree can now be rectified so as to allow the order to be made.

4. Under the terms of this decree I should not myself have had any difficulty in making all the orders necessary against both parties for its performance. The declaration which the decree contains, that the plaintiffs are entitled to have the agreement of the 27th September, 1871, specifically performed, implies that he is himself specifically to perform it, as well as the defendant. As, however, the absence of mandatory words as against the plaintiffs has given rise to difficulties, we have now to consider whether the decree can now be rectified so as to allow the necessary orders to be made. Can we now insert the mandatory words? We have been referred to In re Swire L.R. 30 Ch. Div 239. In that case Lindley, L.J., says: 'There is no such magic in passing and entering an order as to deprive the Court of jurisdiction to make its own records true, and if an order as passed as entered does not express the real order of the Court, it would, as it appears to me, be shocking to say that the party aggrieved cannot come here to have the record set right.... It appears to me, therefore, that if it is once made out that the order, whether passed and entered or not, does not express the order actually, made, the Court has ample jurisdiction to set that right, whether it arises from a clerical slip or not.' And Bowen, L.J., says: 'Every Court has inherent power over its own records as long as those records are within its power, and it can set right any mistake in them. It seems to me that it would be perfectly shocking if the Court could not rectify an error which is really the error of its own minister. An order, as it seems to me, 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 be made without injustice, or on terms which preclude injustice.'

5. These passages, which I have read from the judgments of the lords Justices, must commend themselves to the common sense of every one.

6. It is true that a considerable time has elapsed since the decree was made. The decree was passed in 1878, and we are now; in 1887. What is it, however, that we are really asked to do? We are merely asked to put the decree into the ordinary and usual form of decrees in cases of this nature. I can see no difficulty in doing this. The plaintiffs asked for a decree for specific performance of an agreement, and they got it. How can they object to the decree being in the form in which such decrees are ordinarily framed? The decree, as it stands at present, declares that 'the plaintiffs are entitled to specific performance of the agreement.' The usual form is to declare that 'the agreement ought to be specifically performed, and the Court doth order and decree that the same be specifically performed accordingly.' I think the decree may be amended so as to put it into the usual form.

7. But we have been asked by the defendants to do more than this. We have been asked to add further and consequential directions. We think, however, that we cannot do this. Many things may have happened to affect the position of the parties, and we are of opinion that it would not be safe to do more than we have said. Under the decree as amended, the parties can, no doubt, have the agreement carried into effect.

8. It has been contended that the present motion is res judicata; and that the question was decided by Mr. Justice Bayley by his order of the 10th September, 1885. No doubt, reading literally the notice of motion on which that order was made, the relief there asked for would seem to be the same as that applied for now. But it is impossible not to see how the Judge there dealt with the motion. The first clause of the notice of motion, as stated in the order itself, was that the defendants would apply to set aside the decree of the 13th September, 1878. That was an application under Section 108 of the Code. The notice of motion, however, included other points, and no doubt these points included the matters in respect of which the defendants now seek relief. It is clear, however, that Mr. Justice Bayley dealt with these subsequent points as ancillary to the first and main point raised in that motion, viz., the defendant's right to set aside the decree. Having decided that point against them, he did not really consider the other points at all, and did not adjudicate upon them, and, therefore, I do not think that the present application is res judicata by reason of the order of the 10th September, 1885.

9. Then it was argued that the defendants might have applied for a review, and that having failed to apply within the prescribed time they are now barred from obtaining relief. We do not, however, think that this is a matter for review. It is the decree we are asked to alter, and not the judgment. There cannot be a review because of an error in a decreed Section 206 of the Code deals with amendments of decrees Section 623, with review of judgments. The former section, however, does not apply to this Court.

10. For the reasons which I have given, we are of opinion that the decree may be amended in the manner which I have pointed out. Inasmuch as the difficulties have plainly arisen in consequence of the defendants not having appeared at the hearing of the case in September, 1878, we think they ought to pay the costs of this motion.


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