1. In the litigation out of -which this second appeal arises there were three parties. The appellants now before this Court were subsequent mortgagees. There were certain defendants who were the original mortgagors, and there was one Tika Ram who held mortgages prior in date to those of the present appellants. There were separate suits instituted by Tika Ram and the present appellants; but we are concerned at present only with the suit in which these appellants were the plaintiffs. It was a contested matter between them and Tika Ram as to whether the mortgages in favour of the latter had or had not priority; but this point was decided in favour of Tika Ram A preliminary decree was then drawn up under Order XXXIV, Rule 4, of the Code of Civil Procedure. The facts of the case were somewhat complicated, more particularly by the circumstance that the mortgages in favour of Tika Ram covered certain other property over and above that which was involved both in Tika Ram's mortgages and in the mortgage in favour of the appellants. The preliminary decree drawn up by the Court of first instance was clumsily drafted. In substance, however, it contained the provisions prescribed by the Statute: the mortgagors were given an opportunity to pay off the plaintiffs, failing this the plaintiffs were given an opportunity of paying off Tika Ram, and in the event of the plaintiffs doing so they were to be allowed to bring the mortgaged property to sale. There was appended to the decree a specification of the property in suit, and, of course, the property involved in that particular suit was that covered by the mortgage in favour of the plaintiff's only, and did not include the additional property mortgaged to Tika Ram. In the result the mortgagors failed to redeem and the plaintiffs did pay off Tika Ram. They then came into Court asking for a final decree under the provisions of Order XXXIV, Rule 5, of the Code of Civil Procedure and they naturally claimed that this final decree should be so drafted as to entitle them to bring to sale, not only the property originally-covered by their mortgage, but the additional property included in the mortgages in favour of Tika Ram, to whose rights they had been subrogated in consequence of the payment made by them subsequently to the passing of the preliminary decree. That this was a proper and valid claim has been practically conceded in argument before us, and is beyond question. Nor has it been questioned in the order passed by either of the Courts below. The attitude taken up by the learned Subordinate Judge, who tried the suit in the first instance, and by the learned District Judge in appeal is that the plaintiffs are asking the Court to draw up a final decree for sale in terms inconsistent with the terms of the preliminary decree, and that this cannot be done. In fact a sort of res judicata is being set up against the present appellants. The contention is that they ought to have obtained in the preliminary decree itself a clear and specific statement that in the event of their paying off Tika Ram, they would be entitled to bring to sale not only the property covered by their mortgage, but the additional property already referred to. It is contended that they not only failed to do this, but they acquiesced in a decree which contained a specification of the mortgaged property, that this specification was limited in the manner already stated and that it cannot be added to or modified in any way in the decree absolute. Although these contentions have found favour in both the Courts below, it seems to me that they have no real force. So far as the terms of Order XXXIV, Rule 5, are concerned these merely lay down that in a certain event the Court shall pass a decree that the mortgaged property or a sufficient part thereof be sold. The meaning clearly is that the mortgaged property which the plaintiffs are under the particular circumstances of the case entitled to bring to sale shall be ordered to be sold. Neither rule 4 nor Rule 5 of Order XXXIV says anything about the specification of the mortgaged property. It is, no doubt, right and proper that the mortgage-decree should contain such specification; but the question before us now is whether the Court was debarred from making the correct specification in its final decree under Order XXXIV, Rule 5, by reason of anything it had done in the decree which it passed under Order XXXIV, rule 4. The Court which deals with an application for a final decree is still the same Court of original jurisdiction to which the plaint in the suit was presented, and it is still seized of the entire suit. It is its duty to frame a proper final decree, determining correctly once and for all the respective rights and liabilities of the parties. No doubt it would be a questionable exercise of discretion for a Court to pass a final decree in terms clearly inconsistent with those of the preliminary decree; but so long as a Court is seized of the entire case, it seems to me that it is entitled to clear up any ambiguity existing in the preliminary decree, and I would go further and say that it is entitled to frame its final decree so as to put right any patent error or omission which may be discoverable in the preliminary decree. In the present case the preliminary decree simply directed that in a certain event 'the mortgaged property' should be sold. The specification appended to the decree was simply that of the property mortgaged in the particular mortgage-deed on the basis of which the suit then before the Court was brought. The question whether, in the event of the then plaintiffs paying off Tika Ram, they would or would not become entitled to do something which they had no right to do under their own mortgage, namely, to sell the additional property mortgaged in favour of Tika Ram alone, had not been litigated before the Court and I do not think it can fairly be said that it was determined by the form of the preliminary decree. I am of opinion that the Court of first instance in the present case had jurisdiction, on the application made to it by the present appellants, to pass a final decree for sale in terms desired by the appellants, and I am further of opinion that it ought to have done so. I would, therefore, allow this appeal with costs in all three Courts, including in this Court fees on the higher scale, and direct that a decree for sale be drawn up in the terms desired by the plaintiffs authorizing them to bring to sale not only the property originally mortgaged to them as specified in the preliminary decree, but also the additional property covered by the mortgage or mortgages in favour of Tika Ram alone, the specification of which can readily be ascertained from the papers on the record.
2. I entirely agree in the result and with the reasons given by my learned brother. Mr. Banerji on behalf of the respondents has argued this case with considerable skill, and the candour which might be expected from him. It is only because he has been able to present such formidable arguments, and because two Courts have deliberately decided in favour of the view for which he has contended, that I think it desirable to say something in addition to my learned brother's reasons for allowing this appeal upon some broader and more important considerations, which to my mind are raised. I think it is high time that the attention of the lower Courts in this Province was again drawn to the powers conferred on them by Sections 151, 152 and 153 of the Code of Civil Procedure. Those sections are just as applicable to Courts of first instance as to Courts exercising appellate jurisdiction. Without enlarging upon their scope it is sufficient to say that the powers conferred upon all Courts exercising jurisdiction in this Province by those sections are wide, salutary and intended to enable the Court, where nesessary, to take what is called a short indirect cut, and by curing breaches of technical rules to give effect to the real rights of the parties and to prevent multiplicity of suits. I quite agree with what Mr. Banerji has said that a mere attempt by a Court to do what it is pleased to think justice between man and man' without regard to form at all, is just as likely to produce a miscarriage of justice as a slavish adherence to rules of procedure and it is obviously difficult to hit as a general principle the dividing line between form and substance. But in this particular case there can be no question at all of difficulty in that matter. It was admitted by Mr. Banerji, and by a Counsel of his standing could not be disputed, that by Jaw the appellants in this case were entitled to be subrogated in respect of this surplus piece of property which is in dispute to the rights of Tika Ram. Not only that; it was also admitted by him with equal candour that unless in some way or other they could assert and obtain recognition of those admitted rights in the proceeding now before us, they would be confronted in an independent suit, brought in order to assart them, with a plea of res judicata. In other words, the order of the Court below which we are asked to affirm was so to hold a party to the which he ha;; crossed and the is which he has dotted as to deprive him of the actual rights admitted by the party opposed to him in the suit. It is in such cases, and such cases only, a Court is not only entitled but is bound in my humble judgment to brush aside a mere technicality which stands in the way of justice and to amend such mistakes, slips or omissions as may appear to prevent justice in order to give effect to the real and substantial rights of the parties. I desire to cite in support of the view. I hold in this matter what has been laid down and recognised for years in the Courts in England, upon which the principles of justice in this country are framed. The provisions of the English Law are to be found in Order XXVIII of the Rules or the Supreme Court, which correspond roughly with the First Schedule of the Code of Civil Procedure, and in Sub-section 7 of Section 24 of the Judicature Act of 1875, which was the great remedial legislation intended to get rid of the by pertechnicalities of the English administration of justice; the recognised principles upon which those provisions have been administered are contained in the sentences which I am going to quote from the judgments of recognised authority in the Court of Appeal at different epochs. 'My practice,' said Lord Bramwell, 'has always been to give leave to amend, unless I have been satisfied that the party applying was acting mala fide, or that by his blunder he had done some injury to his opponent which could not be compensated for by costs or otherwise.' 'However negligent or careless may have been the first omission', said Lord Esher, and, however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs.' 'An amendment ought to be allowed if thereby the real substantial question can be raised between the parties and multiplicity of legal proceedings avoided.' Again, the Court of Appeal has said that under these provisions every Judge has full powers of his own motion (that means to say, when he sees that the party himself has not recognised the amendment which is necessary, but that an amendment is desirable) to make any amendment which he deems necessary for the purpose of determining the real question at issue between the parties. I do not myself profess to have followed very closely what possible alternative might have been suggested to the Courts below for the purpose of correcting what was not an omission, but was in my view a want of foresight in the original drawing up of the provisional decree. It must be borne in mind that in drawing up such orders as this the priority of the mortgages in question, the contingency to arise in the event of the first mortgage being paid off either by the mortgagor or the subsequent mortgagee, and a variety of other details have to be considered and worked out, and Judges, officials and Counsel themselves would be more than human if mistakes were not made by even the most highly qualified person entrusted to carry out the work. It is of the highest importance for the administration of justice that when the real rights of the parties are clear and definite, as in this case they are admitted to be, the Court of its own motion without waiting for any application to be put in by a party should adopt the necessary course to give effect to such admitted rights. It is for that reason I have not referred to Section 114 of the Code of Civil Procedure which gives the power of review. That is also a salutary provision; but having regard to the provisions relating to the procedure contained in Order XLVII, it involves a party who is suffering from a mistake the task of taking some fresh independent steps of a technical nature which may lead to some unforeseen difficulty. I think myself that the powers under the sections already referred to are sufficient for a Court and that they should be kept in mind by the lower Courts when such controversies arise as have arisen in this matter. It only needs to be added that in all such cases, where it is clear to an Appellate Court that it was open to the first Court or any lower Court to have taken such steps by way of amendment, the Appellate Court ought to do what the lower Court might have done.
3. By the Court.--The appeal is allowed with costs in all three Courts, including in this Court fees on the higher scale and it is ordered that a decree for sale be drawn up in the terms desired by the plaintiffs authorizing them to bring to sale not only the property originally mortgaged to them as specified in the preliminary decree, but also the additional property covered by the mortgage or mortgages in favour of Tika Ram alone, the specification of which can readily be ascertained from the papers on the record.