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L. Ram Chander Sarup Vs. Munshi Mazhar HussaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1919All264; 51Ind.Cas.55
AppellantL. Ram Chander Sarup
RespondentMunshi Mazhar HussaIn and ors.
Excerpt:
.....after being satisfied that there had been a genuine oversight and that it had only just been discovered, does not now matter, because the court of insolvency entertained the application and on the 19th of may 1916 made a formal order upon the creditor's application that the amount of the debt should be entered as rs. it was clearly subject to appeal if it was wrong. the matter did not clearly come under section 152, code of civil procedure......of insolvency entertained the application and on the 19th of may 1916 made a formal order upon the creditor's application that the amount of the debt should be entered as rs. 3,418 odd, the amount which appeared to the court to be correct according to the creditor's sworn statement. that decision or order may have been right, or may have been wrong. we are not now considering the merits. it was clearly subject to appeal if it was wrong. an application was made to review it. that application for review was rejected. all the creditor's remedies for rectifying any error, if there was an error, being thus exhausted, the order of the 19th of may 1916 became final and binding upon him and, according to a decision of this court, binding also upon any other court in which the matter might happen.....
Judgment:

1. This is a plain case. The question arises as to whether the present appellant is now in a position under the law to establish what he claims to be the true amount of his debt, namely, some Rs. 6,000 odd. It was stated originally at about that amount by the debtor. In 1913, the creditor himself, who ought to know better than anybody else, stated the amount at Rs. 3,418 odd and supported that claim by affidavit, at which amount it was allowed. He now says that it was a mistake.

2. No doubt the Insolvency Court has the same jurisdiction that the ordinary Courts of law possess under the Civil Procedure Code to correct any mistake either of a clerk or of the parties themselves upon a question of fact, when a mistake is established. It would appear that this creditor took three years or a little less to discover this serious error. But having discovered it, he applied to the Insolvency Court to rectify the amount of his debt in the Schedule. Whether without extending the 21 days which is given for such applications by the Act, the Court could entertain the application itself on proper grounds after being satisfied that there had been a genuine oversight and that it had only just been discovered, does not now matter, because the Court of Insolvency entertained the application and on the 19th of May 1916 made a formal order upon the creditor's application that the amount of the debt should be entered as Rs. 3,418 odd, the amount which appeared to the Court to be correct according to the creditor's sworn statement. That decision or order may have been right, or may have been wrong. We are not now considering the merits. It was clearly subject to appeal if it was wrong. An application was made to review it. That application for review was rejected. All the creditor's remedies for rectifying any error, if there was an error, being thus exhausted, the order of the 19th of May 1916 became final and binding upon him and, according to a decision of this Court, binding also upon any other Court in which the matter might happen thereafter to be litigated. It was a final decision upon the merits and no Court has jurisdiction to reopen it. The present application was made to the same Court, although presided over by a different Judge, on the 3rd of December 1917, nearly two years after the decision on the merits and more than four years after the original. The application appears to have been based upon Section 24 of the Insolvency Act and also on Section 152 of the Civil Procedure Code. So far as Section 24 of the Insolvency Act is concerned, the Court has no jurisdiction to entertain the matter at all. It had already decided it once and was functus officio. Under that section the application was properly rejected.

3. Section 152 seems to have been called into play upon the suggestion that the original error was a clerical error which required amendment. That, however, in the first place begs the question, because the Court by its order of the year 1916 had decided that it was not a mistake, but in the second place it could not in any event have been a mistake of the Court; the mistake was that of the creditor. Section 152 deals with amendments of clerical errors in orders or decrees of the Court itself which are drawn up not properly representing what the Court decides. The matter did not clearly come under Section 152, Code of Civil Procedure. There was obviously no remedy open to the creditor at all. The application was wholly misconceived. This appeal must be dismissed with costs on the higher scale.


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