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Alliance Bank of Simla Ltd. (In Liquidation) Vs. Faiz-i-am High School Association and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1928All458
AppellantAlliance Bank of Simla Ltd. (In Liquidation)
RespondentFaiz-i-am High School Association and ors.
Excerpt:
- .....prepared by the office of the learned subordinate judge of meerut, defendant 3 is described as sh. rashid uddin sahib, rais lalkurti bazar, meerut cantonment. when the liquidator of the alliance bank filed an appeal against that decree the persons who were impleaded as respondents were the persons mentioned in the decree, and no. 3 was sh. rashid uddin rais lalkurti bazar, meerut cantonment. when the appeal was ready for hearing the learned counsel for the appellant discovered that bashir uddin defendant 3, had not been made a party-respondent. he therefore applied to this court setting out the circumstances under which the mistake was made and which we have upon examination of the record found to be correct, that it was entirely due to the mistake of the decree-writer in the court of.....
Judgment:

1. A suit was filed by the Liquidator of the Alliance-Bank of Simla, Ltd., against six defendants, and defendant 3 is described in the original plaint, which is in English, as Sh. Bashir Uddin Sahib rais Lalkurti Bazar, Meerut Cantonment. The suit was partly decreed, but in the decree that was prepared by the office of the learned Subordinate Judge of Meerut, defendant 3 is described as Sh. Rashid Uddin Sahib, rais Lalkurti Bazar, Meerut Cantonment. When the Liquidator of the Alliance Bank filed an appeal against that decree the persons who were impleaded as respondents were the persons mentioned in the decree, and No. 3 was Sh. Rashid Uddin rais Lalkurti Bazar, Meerut Cantonment. When the appeal was ready for hearing the learned Counsel for the appellant discovered that Bashir Uddin defendant 3, had not been made a party-respondent. He therefore applied to this Court setting out the circumstances under which the mistake was made and which we have upon examination of the record found to be correct, that it was entirely due to the mistake of the decree-writer in the Court of the Subordinate Judge that Bashir Uddin was not impleaded. The prayers in the application which is now before us for disposal are that the original decree of the Court of the Subordinate Judge be corrected by putting in the array of parties the name of Sh. Bashir Uddin and expunging the name of Sh. Rashid Uddin. The second prayer is that the relief against Bashir Uddin be held not to be time barred. This application is opposed by Mr. Muhammad Husain who appears for the other respondents and Bashir Uddin on whom notice of the appellant's application has been duly served.

2. Mr. Muhammad Husain contends that under Section 152, Civil P. C, the only Court that can correct the apparent clerical mistake is the Court of the Subordinate Judge and although we are seised of the appeal we have no jurisdiction to amend the decree. He has not controverted, and in fact cannot controvert the fact that a mistake was made by the decree-writer of the Subordinate Judge and that the name in the decree ought to be Bashir Uddin and not Rashid Uddin. We are unable to understand how this mistake arose as the plaint is typewritten and in English.

3. Mr. Muhammad Husain further contends that even if we have jurisdiction to amend it, we should not do so because the hearing of the appeal will be delayed by bringing Bashir Uddin on the record and the respondent, in case the appeal is allowed, will have to pay to the appellant more money as interest than they would have had to pay if Bashir Uddin had originally been implicated as one of the respondents.

4. We are of opinion that, as we are seised of the case, in view of the provisions Section 107, read with Section 152, Civil P. C, we are entitled to correct any clerical or arithmetical mistake apparent on the face of the record. Mr. Muhammad Husain admits that some Court must have power to do so, but in accepting his contention all that will happen is that we will have to send the record to the Court below to examine and see whether there was an apparent error on the face of the record. As we have stated we have examined the record and there is the mistake. We, therefore, direct that in the decree the name of Rashid Uddin be deleted and the name of Bashir Uddin substituted.

5. On behalf of Mr. Chaddha Mr. Muhammad Husain claims that Rashid Uddin ought to get all costs and his name removed from the record forthwith. We direct that Rashid Uddin's name be expunged from the memorandum of appeal. Rashid Uddin is entitled to the costs he has incurred. We allow him Rs. 50 as counsel's fees. As regards the prayer of Mr. Muhammad Husain with reference to the extra interest which his clients might have to pay if the appeal is decreed, we are unable at this stage to pass any orders. All that we can say is that Mr. Muhammad Husain ought to mention the matter before the Bench hearing the appeal, and it will be for that Bench to decide, in the event of the appeal being decreed, from what date interest should be paid, or should not be paid to the appellant. Mr. Muhammad Husain is entitled to the costs incurred by his clients in the matter of this application. We assess Rs. 50 as the costs of this application as Mr, Muhammad Husain's fees.

6. Mr. Muhammad Husain further claims costs incurred by his client on account of the adjournment of the appeal on 1st May. This will be a matter for the Bench deciding the case to fix or award. We direct the office to enter the name of Bashir Uddin in the memorandum of appeal in place of Rashid Uddin and to fix a date for hearing and serve Bashir Uddin's counsel with notice thereof, and we extend the time for impleading Bashir Uddin under Section 5, Lim. Act. In case Bashir Uddin wishes to apply for translation and printing of any paper, which has not already been translated or printed, he will be at liberty to apply within two weeks from to-day for translation of such paper.


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