1. This appeal raises a question of some importance and is accordingly laid before a Bench of two Judges.
2. Briefly the facts are these. A preliminary decree for sale was passed in favour of the appellant and one Dina Nath on the 31st of January 1911. The appellant purchased the share of Dina Nath in the decree and on the 2nd of January, 1914, well within three years of the passing of the preliminary decree, applied to the Court to pass a final decree. Notices were issued to the judgment-debtors and to Dina Nath who had been made an opposite party to the application and the case was adjourned from time to time. On the 17th of July, 1915, when the case was ripe, the appellant happened to be absent. The defendants never appeared. In the absence of the parties, the learned Subordinate Judge passed an order which, though ambiguous, has been treated as amounting to an order dismissing the suit for default. On the 28th of September, 1916 the appellant put in an application before the learned Subordinate Judge reciting all the previous history of the case and asking that his application dated the 2nd of January, 1914 might be revived and a final decree might be passed. He mentioned pointedly that the order of the 17th of July, 1915 was one which should not have been passed. The learned Subordinate Judge accepted the petition and passed by an ex-parte order a final decree for sale.
3. At the instance of some of the defendants the ex parte final decree was set aside and the previous application dated the 28th of September, 1916 was restored.
4. When the application dated the 28th of September, 1916 came to be heard, it was urged on behalf of the defendants that it was a fresh application and that it was barred by time.
5. The learned Subordinate Judge held that the order dated The 17th of July, 1915 was an order which The Court ought not to have passed. He pointed out that under the law, namely provisions of Order 34, Rule 5 of the Civil Procedure Code, nothing further was needed to be done by the plaintiff, the appellant before us. The decretal amount had not been paid into Court and the plaintiff had done all that could be done by him, namely that he had put in application before the Court asking it to pass a final decree. The learned Judge under the circumstances, thought that ho was justified, nay it was his duty to rectify his own mistake possibly his predecessor's mistake and he dismissed the objection of The judgment-debtors and passed a final decree for sale.
6. An appeal was taken to the learned District Judge who accepted it and dismissed The application of The appellant for the preparation of the final decree.
7. Hence this second appeal.
8. It has been urged for the respondent that the Court of first instance was not right in saying that on the 17th of July 1915 the appellant had nothing further to do in the case. It was stated that he had to prove the assignment. Assuming that the argument is correct, all that was wanting was the proof as to the assignment; but that did not give the Court any right to dismiss the application in toto. It could have only said that it would pass a final decree for sale in favour of both the appellant and Dina Nath. This argument, therefore does not find favour with us.
9. Now the question is whether the judgment of the Court of first instance was right. It is clear that if we treat the application of the 28th of September, 1916 as a fresh application, it would be time-burred. If we treat it as an application for review of judgment, it would still be time-barred unless we apply Section 5 of the Limitation Act to the case. On the other hand, there is no bar to the Court exercising its inherent authority under Section 151 of the Code of Civil Procedure and rectifying its own mistake. This is exactly what the Court of first instance purported to do.
10. The Privy Council, in the case of Debi Baksh Singh v. Habib Shah (1913) 35 All. 331, laid down, under the following circumstances, that even apart from Section 151 of the Civil Procedure Code, the Court possessed an inherent power to rectify the mistake which had been inadvertently committed by itself. In the case before the Privy Council the plaintiff had died and the suit was dismissed for default in ignorance of The fact of the death. The legal representatives of the deceased plaintiff made an application to be brought on the record. It is clear that no suit was pending and an application for substitution of names could not be made where there was no suit pending. An application for restoration of the suit would have boon time-barred. Yet the Privy Council had no hesitation in saying that, in the circumstances of the case, the Court was bound to correct its own error.
11. The case before us is different in facts bat the same principle, as has been laid down by the Privy Council is applicable. As already pointed out, the case was ripe on the 17th of July, 1915. Rule 5 of Order 34 of the Civil Procedure Code requires only this much of the plaintiff that he shall toll The Court that a final decree for sale has to be prepared. In the case of the defendant paying up the decretal amount, it is not even necessary for him to say to The Court that a final decree, discharging the mortgage, has to be passed in his favour. The plaintiff, however, is required to make an application and that application he did make. If, therefore, nothing remained to be done by the plaintiff the Court's duty it was to pass a final decree for sale. The Court has rectified its own mistake and we do not think that there is any real grievance to the defendants.
12. We allow the appeal, set aside the decree of the Court below and restore that of the Court of first instance. The appellant will have his costs in this Court and in the Court below, which will include counsel's fees in this Court on the higher scale.