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U. Latchayya Vs. G. Seethamma and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1932Mad275
AppellantU. Latchayya
RespondentG. Seethamma and ors.
Cases ReferredGanesh Rao v. Tuljaram Rao
Excerpt:
- - it was found that there had been a common mistake in making the mortgage deed and the decision was that the deed and the decree obtained upon it might both be rectified in the second suit, provided that would not infringe the rights of any third party acquired in good faith and for value, as the learned judges found that it would not. it is well known that a second suit may be brought to set aside a previous decree between the parties on the ground that it was obtained by fraud. it is well known that a right of appeal does not exist except when it is given by statute or statutory provision. it was also for the rectification of the mortgage-deed, and that was in itself clearly an admissible prayer. that might well be an argument in some cases against a plaintiff who asked for.....reilly, j.1. in 1906 the brother of defendant 1 mortgaged some land to the mother of the three plaintiffs. after their mother's death the plaintiffs in 1919 brought a suit for sale on that mortgage, o. s. no. 302 of 1919, on the file of the district munsif of razole, and got a preliminary decree. there was no appeal against that decree. not long after that decree had been made the plaintiffs discovered that in the mortgage deed survey no. 106 had been entered by mistake for survey no. 168, and that that mistake had been repeated in their plaint and in the decree which they had obtained. they then brought the present suit, praying for rectification of the mortgage deed by the substitution of survey no. 168 for survey no. 166 and for a similar rectification of the decree in o.s. no. 302 of.....
Judgment:

Reilly, J.

1. In 1906 the brother of defendant 1 mortgaged some land to the mother of the three plaintiffs. After their mother's death the plaintiffs in 1919 brought a suit for sale on that mortgage, O. S. No. 302 of 1919, on the file of the District Munsif of Razole, and got a preliminary decree. There was no appeal against that decree. Not long after that decree had been made the plaintiffs discovered that in the mortgage deed Survey No. 106 had been entered by mistake for Survey No. 168, and that that mistake had been repeated in their plaint and in the decree which they had obtained. They then brought the present suit, praying for rectification of the mortgage deed by the substitution of Survey No. 168 for Survey No. 166 and for a similar rectification of the decree in O.S. No. 302 of 1919. It was found both by the District Munsif and by the Subordinate Judge on appeal in the present suit that there had been a common mistake by the parties to the mortgage deed and that in consequence of that mistake Survey No. 166 had been entered in the deed when the parties intended to deal with Survey No. 168. That finding of fact in regard to the common mistake made is binding upon us. The District Mnnsif ordered rectification as prayed by the plaintiffs, both of the mortgage deed and of the preliminary decree, and that decision was confirmed by the Subordinate Judge on appeal. Defendant 1 preferred a second appeal to this Court which was dismissed by Waller, J. The present appeal is again by defendant 1, against Waller, J's., decision

2. Waller, J., in a brief judgment remarks that it has been contended before him that, though the mortgage deed might bo rectified, the decree made upon it could not bo rectified in the suit. That contention he overruled on the strength of Bepin Krishna Ray v. Jogeshwar Ray A.I.R.1921Cal.730 and Venkatarama Ayyar v. Elumalai Naicker A.I.R.1923 Mad.442. Wo have examined the records in Venkatarama Ayyar v. Elumalai Naicker A.I.R.1923Mad.442, so far as they are available, and that case does not appear to be capable of the interpretation which Waller, J., put upon it. It is not clear from the records available whether the decree in the first suit was ever rectified in the second suit; but it is quite clear from the judgment of Schwabe, C. J., in the second appeal that he found no rectification even of the deed to be necessary as the land was in his opinion sufficiently identified by the description originally given in the deed and in the decree in the first suit. Nor was there any discussion in his judgment, with which Wallace, J., agreed, of the question whether the decree in the first suit could have been rectified in a second suit. But Bepin Krishna Ray v. Jogeshwar Ray A.I.R.1921Cal.730 is a clear authority, if it is to be followed, in support of Waller, J's., judgment. That was a decision of Mookerjee and Buckland, JJ., of the Calcutta High Court. There in the second suit the mortgage deed and the decree obtained upon that mortgage deed in a previous suit had been rectified. It was found that there had been a common mistake in making the mortgage deed and the decision was that the deed and the decree obtained upon it might both be rectified in the second suit, provided that would not infringe the rights of any third party acquired in good faith and for value, as the learned Judges found that it would not.

3. That decision was followed a short time afterwards by Mookerjee, J., himself and Cuming, J., in Kailas v. Bijay A.I.R.1923 Cal.18, but without any further discussion. It is in conflict with an earlier decision of Jenkins, C. J., and Holmwood, J., in Kusodhaj Bhukta v. Braja Mohan Bhukta [1910]43 Cal.217, and in conflict with another earlier decision of a different Bench of the Calcutta High Court in Bhonda Singh v. Dowlat Roy [1912]14 I.C.93. In the previous suit which led to Kusodhaj Bhukta v. Braja Mohan Bhukta [1910] 43 Cal. 217, the plaintiff had claimed a one third share of certain property, and the Judge in his judgment had found that he was entitled to that share. But in the decree by some accident a half-share was provided as the share which the plaintiff was entitled to recover. In the second suit, which came before the High Court as Kushodhaj Bhukta v. Braja Mohan Bhukta [1910] 43 Cal. 217, one of the defendants in the previous suit sued to set aside the decree in the previous suit on the ground of mistake. Jenkins, C. J., and Holmwood, J., found that such a suit, to set aside the decree in the previous suit on the ground of mistake was unsustainable. They referred to a previous decision of a Bench of the Calcutta High Court, Jogeshwar Atha v. Ganga Bishnu [1904] 8 C.W.N.473, in which it had been hold that such a suit to set aside a previous decree was possible; but Jenkins, C. J., pointed out that that decision was based on a misapprehension of the law in England as disclosed by a case which had been cited, namely, Ainsworth v. Wilding [1896] 1 Ch. 673.

4. In Bepin Krishna Ray v. Jogeshwar Ray A.I.R. 1921Cal.730 the decision in Jogeshwar Atha v. Ganga Bishnu [1904] 8 C.W.N.473 was followed; but the reason Jenkins, C. J., had pointed out why that case should not be regarded as a sound precedent does not appear to have been observed. With great respect I am not able to understand exactly how the learned Judges in Bepin Krishna Ray v. Jogeshwar Ray [1904] 8 C.W.N. 473, came to the conclusion that the second suit to set aside a decree in a previous suit upon the ground of mistake was possible, nor how it was that they felt themselves at liberty to differ from the decision of Jenkins, C. J., and Holmwood, J., in Kusodhaj Bhukta v. Braja Mohan Bhukta [1910]43 Cal.217. In Mahindra Narain v. Mt. Lal Jhari Kuer, A.I.R. 1931 Pat. 296 : : AIR1931Pat296 , Wort, J., held that a suit for rectification of a decree in a previous suit and for delivery of property in accordance with the rectified decree could not be sustained in this country any more than it could in England And in Janakdular Saran v. Ambina Prasad [1917] 2 Pat. L.J. 313, Chapman, J., expressed the opinion obiter that Courts in India should refuse relief against previous judgments on the ground of mistake in pleadings or in the conduct of cases.

5. To attack by a second suit the decree in a previous suit between the same parties is speaking generally, against the principle of res judicata. It is recognized that there are certain classes of cases in which it is possible for one of the parties to a decree to attack it in a second suit. For instance, a compromise decree may be attacked in a . subsequent suit by one of the parties to it on the ground of mistake as indeed it can be attacked upon other grounds such as fraud, misapprehension, coercion, etc. But that is not really in conflict with the principle of res judicata, because such a compromise decree is not the result of adjudication between the parties. It is merely the contract between the parties put into the form of a decree, and so it can be attacked subsequently in the same way in which a contract or the document embodying a contract can be attacked. In such cases the decree is indeed itself the instrument of contract, made by the hand of the Court but by the will of the parties. Such corn promise decrees can be attacked as contracts can be attacked for such reasons as I have mentioned, or in cases where one of the parties is a guardian acting for a minor without the consent of the Court, as in Ganesh Row v. Tuljaram Row [1913] 36 Mad.295, or where one of the parties is a minor ostensibly represented by a guardian who has not been properly appointed, as Partab Singh v. Bhabuti Singh [1913]35 All487. Then there are cases in which it is alleged that the previous decree has been obtained by fraud. It is well known that a second suit may be brought to set aside a previous decree between the parties on the ground that it was obtained by fraud.

6. There again there is no conflict with the principle of res judicata, because in such casees there has been no real and true adjudication between the parties. As was said long ago ' Fraud vitiates everything' or, as Lord Coke said 'Fraud avoids all judicial acts.' If it can be shown that a decree in a previous suit has been obtained by fraud, the very foundation of that decree has gone; what was supposed to have been a decision founded on the rights of the parties is shown to rest on iniquity and deception. Both these two classes of cases where the previous decree can be shown to have been obtained by fraud, we can put upon one said as not affecting the question whether decrees made after real adjudication between the parties can be attacked by any of them in a subsequent suit. As Wort, J., pointed out, judgments cannot be attacked in that way in subsequent suits or actions in England. Before the Judicature Act, 1873 the Court of Chancery could interfere with the proceedings of the Courts of Common law by injunctions; but so far as I am aware, even the Court of Chancery could not formally set aside a judgment of one of the other Courts, and certainly that cannot be done since the Judicature Act, 1873. If that cannot be done in England, why is it possible to do it in India? There are various ways of attacking a decree by appeal, review, amendment, applications to set aside ex parte decrees and applications to restore suits which have been dismissed ex parte.

7. But what we are asked to say in this case is something quite different, that a decree made between the parties and final between them can be attacked in a subsequent suit and rectified on the ground of mistake. It is well known that a right of appeal does not exist except when it is given by statute or statutory provision. How can this right to attack a previous decree arise, and how can it exist consistently with the principle of res judicata? If there were any doubt about the matter, the fact that our procedure provides so many other ways of attacking a decree when necessary and provides them explicitly might be taken as an indication that this supposed method of attack by a subsequent suit did not exist. In my opinion this suit, so far as it was for rectification of the decree in O. S. 302 of 1919, was not sustainable.

8. On that Mr. Bhimasankaran, who appears for defendant 1, would have us say that the whole suit should have been dismissed. But the suit was not only for the rectification of the decree; it was also for the rectification of the mortgage-deed, and that was in itself clearly an admissible prayer. Mr. Bhimasankaran however contends that, as the mortgage deed has ripened into a decree in O. S. No. 302 of 1919, the mortgage deed has been swallowed up in the mortgage decree and no longer remains for rectification. He would have us apply the principle that, when a mortgage decree for sale has been obtained, the mortgage security has been extinguished and the decree for sale has been substituted for it, as laid down by Lord Haldane in Het Ram v. Shadi Ram A.I.R.1918 P.C.34. But although the mortgage may have been extinguished by the mortgage decree, does it follow that the mortgage deed can no longer be rectified? What a mortgage decree for sale gives is the right to sell the mortgaged property, whatever it may be. Is it impossible after such a decree has been made to show in necessary cases what the mortgaged property is and in order to do that to get the mortgage deed rectified? In such a case, as in all cases of rectification of instruments, it is not the contract which is being corrected--that can never be done but it is the instrument embodying the contract incorrectly which has to be rectified. I do not think that the fact that the mortgage has ripened into a decree for sale is not enough to preclude the Court from rectifying the mortgage deed in proper cases when that can be done for proper purposes.

9. It has been suggested at a late stage in this case that the plaintiff's are guilty of laches. That might well be an argument in some cases against a plaintiff who asked for rectification after he had himself sued upon his document and got a decree upon it; but it cannot be put foward necessarily in all such cases. And it may be remarked that no such contention was so far as we can see, ever put forward in any of the Courts before which this case has come until today. It must be noticed that in this case the original mortgagee was a woman, probably an illiterate woman. She was not responsible in any way, so far as we can see, for the misdescription of the property in the mortgage deed. And the plaintiffs are not the original mortgagees; they come into this matter only as daughters and heirs of their mother, the original mortgagee, and were not responsible in any way for the mistake which has been made. In these circumstances I do not think we can attach any weight to this very belated accusation of laches.

10. But there are of course limits after which rectification of an instrument will not be made. The limit stated in Section 31, Specific Relief Act, is when third parties have acquired rights in good faith and for value. But that does not apply in this case. There is also another limit, which, as Mr. Bhimasankaran has contended, is exemplified in Caird v. Moss [1886]33Ch. D.22, where a decree has been obtained upon an unrectified instrument, and that decree has been executed and the money or property concerned has been recovered. Caird v. Moss [1886] 33 Ch. D.22 rests upon the old case of Marriot v. Hampton 7 I.R. 269, that the money paid under legal process cannot be recovered, and it was on that principle that in Caird v. Moss [1886] 33 Ch.D. 22 the Judges of the Court of appeal refused to allow rectification of the deed after judgment had been obtained upon it and the money concerned had been recovered and distributed. That too does not apply in this case. We are here still in the stage of a preliminary decree. In my opinion it was not too late in the circumstances when the plaintiffs came forward and prayed for rectification of the mortgage deed.

11. And I see no difficulty in separating the mortgage deed for this purpose from the decree which was obtained upon it. Mr. Bhimasankaran contends that even the rectification of the deed is not possible because the plaintiffs are shut out after the decree in the previous suit by the rule embodied in Expl. 4, Section 11, Civil P.C., that

any matter which might and ought to have been made a ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

12. Can we say that this ought to have been a matter of attack in the previous suit? Possibly it might have been urged, if it were the defendants who were seeking rectification, that it ought to have been made a matter of defence in the previous suit that a decree was asked for on the basis that the plaintiffs should bring to sale land which was never mortgaged. But here it has been found that both the parties to the deed made a mistake in having Survey No. 166 entered for 168. In my opinion we certainly cannot apply the principle of the explanation to the plaintiffs.

13. So far as I can see therefore there is no reason why the decree made in favour of the plaintiffs for the rectification of the mortgage-deed should not stand. Now, if the plaintiffs could get so far as that, why could they not get what they want in this matter? If the mortgage deed is rectified and the right survey number is entered in it, though a wrong survey number was copied into their plaint in O. S. No. 302 of 1919 from the deed as it then stood, why could they not apply for amendment of their plaint? An amendment of a plaint may be applied for at any stage in the proceedings; and in this case we have not even got to execution proceedings--the suit is still pending, and a final decree has not yet been made. Certainly such an application for amendment would be very late now and would have been very late at the date of the plaint in the present suit. But in the circumstances it might have been made, and I do not see any reason why it should have been refused. Amendments have been allowed by this Court as late as execution proceedings, as is shown by Appassa Rowthen v. Muhammad Rowthan : AIR1927Mad435 , and the cases quoted in it. And, if the plaintiffs got to that stage and had their plaint amended, what would prevent them from going to the Court which had disposed so far of their first suit, O. S. No. 302 of 1919, and applying for review of the preliminary decree on the ground that there was an error patent on the face of the record, as it would be patent if the survey number were altered in their plaint? That is a course they could have adopted and can adopt now. They might even I think in such a case as this without applying for review ask the District Munsif to amend his decree Under Section 152, Civil P.C. Whichever of these courses were adopted, they would arrive at the same position at which they have now arrived, namely, their preliminary decree would be amended. It must be noticed that in this case the second suit was brought in the same Court as the first suit, so that there is no difficulty about their decree having been amended by another Court. In my opinion the plaintiffs in this case adopted the wrong course. They sued for rectification of their decree on the ground of mistake, which, so far as I can see, was an inadmissible prayer. But they got the amendment of that decree, which is exactly what they might have got by first getting their mortgage-deed rectified and then amending their plaint and applying for review of the preliminary decree or amendment of that decree Under Section 152, Civil P.C. That being so, although in my opinion they have adopted the wrong course, I can see no reason why at this stage we need interfere with Waller, J's. decree, and I would dismiss this appeal with costs.

Anantakrishna Ayyar, J.

14. I agree. The plaintiffs represent the mortgagees. Defendants 1 and 2 represent the mortgagors (the mortgage being dated 1st October 1906), and defendant 3 is a subsequent mortgagee from the mortgagors under a document dated 12th February 1921. The plaintiffs obtained a preliminary decree on the mortgage of 1906 in O. S. No. 302 of 1919 on the file of the District Munsif of Razole. They subsequently discovered that a mistake was made in the mortgage deed in mentioning the correct survey number of the property mortgaged. Instead of mentioning the correct survey number--168--the mortgage document mentioned the mortgaged property as Survey No. 166, in Munganda village. The plaintiffs applied to the District Munsif, after the preliminary decree was passed in O. S. No. 302 of 1919, to have the mistake corrected. The District Munsif was of opinion that the question whether there was or was not, a mistake in respect of the survey number in the mortgage-deed could not be gone into except in a frash suit.

15. The present suit was accordingly instituted by the plaintiffs--the mortgagoes--in the very same District Munsif's Court against defendants 1 and 2 who represent the mortgagors and defendant 3, the subsequent mortgagee from defendants 1 and 2. The first prayer in the plaint was to have the mortgage bond dated 1st October 1906 amended by substituting Survey No. 168 in the place of No. 166,--the property really intended and agreed to be mortgaged being Survey No. 168. Plaintiffs also prayed that the decree in O. S. No. 302 of 1919 mentioned above, should be amended suitably by substituting the correct survey number. Defendant 3 pleaded that he was a bona fide mortgagee from defendants 1 and 2 subsequent to the mortgage of 1906, whereas defendants 1 and 2 seem to have contended that there was no mistake at all in respect of the survey number. The lower Courts have found against the contentions of the defendants. The finding is thai; there was a mutual mistake between the parties in mentioning the survey number in the mortgage-deed and that it was Survey No. 168 that was really intended and agreed to be included in the mortgage document. In fact, as the lower appellate Court remarks the mortgagors had no land bearing Survey No. 166 in that particular village. That is a finding of fact, and we are bound by it in second appeal. The trial Court also found that defendant 3 was not a bona fide subsequent mortgagee. That would seem to be the finding of the lower appellate Court also. That finding also is binding upon us. On these findings, the second appeal preferred by defendant 1 to this Court was dismissed by Waller J. It was argued before the learned Judge that a suit would not lie to correct a mistake in a decree passed by a Court. The learned Judge overruled that contention relying on Bepin Krishna Ray v. Jogeshwur Ray A.I.R.1921Cal.730. The learned Judge also relied on a decision of this Court reported in Venkatarama Ayyar v. Elumalai Naicker A.I.R.1923 Mad.442. Defendant 1 has preferred this Letters Patent appeal against the decision of the learned Judge.

16. The first question that arises is whether a mortgage deed could be rectified, in respect of a mutual mistake, after a decree had been passed on the basis of that mortgage. The learned advocate for the appellant argued that after the decree was passed on such mortgage, the right to amend the mortgage deed came to an end. I am unable to agree with that contention. Section 31, Specific Relief Act indicates the limits of the power of the Court to rectify an instrument when a mutual mistake is proved. The circumstance that a decree has been passed on such mortgage is not, in my opinion by itself, a legal bar to such rectification being granted, when otherwise a case for rectification is made out. In this respect I am inclined to follow the observations made by the learned Judges in Bepin Krishna Ray v. Jogeshwar Ray A.I.R.1921Cal.730. At p. 273 (of 34 C.L.J.) the learned Judges state the point for decision as follows:

Here the question of fundamental importance, stripped of all technicalities, is, whether the mutual mistake of the parties to the mortgage transaction manifested in the mortgage deed, which has extended into judicial proceedings, automatically as it were, without mistake on the part of the Judge, is still capable of rectification.

17. They answer the question as follows:

On principle, the answer should clearly be in the affirmative; for, as Neville, J., observed in, Thompson v. Hickman [1907]1 Ch.550, at p. 562, to grant relief by way of rectification where the error has crept into one document and refuse it where it is embodied in two, is inconsistent with equitable principles, for equity regards the substance rather than the form of a transaction. There is no substantial reason, for instance, why wo should not hold that where the same mutual mistake has been repeated in each one of a claim of conveyances, under such circumstances as to entitle anyone of the purchasers to a reformation (reformation seems to bo the term used in American text-books, whereas our Act uses the word 'rectification') as against his immediate vendor, equity may work back through all, and entitle the last purchaser to a reformation against the original grantor.

18. So far I agree with the observations made by the learned Judges in the Calcutta Law Journal case, in the case before us, the proceedings have not gone beyond the stage of passing the decree; the case is not complicated by the existence of a purchaser in Court auction in execution of the decree, the purchaser having bought the property with the wrong survey number mentioned in the proclamation and sale certificate. I therefore overrule the contention of the learned advocate for the appellant that simply because a decree has been passed in this case, the Court's jurisdiction to rectify the mortgage-deed has ceased.

19. The second contention is really more difficult to deal with. The learned advocate for the appellant argued that no suit lies in India to rectify a decree passed by another competent Court on the allegation that there was mutual mistake in respect of the mortgage deed which was the subject-matter of suit in the prior litigation. Cases of mutual mistakes in respect of compromises, or compromise decrees subsequently passed on the basis of such compromises, on which the learned advocate for the plaintiffs-respondents relied, are, in my opinion, distinguishable. For, as observed by Jenkins, C. J., in Kusodha Bhukta v. Braja Mohan Bhukta [1910]43Cal.217, at p. 223:

But that class of cases is governed by a principle that has no application here. It is wellsettled that a contract of the parties is nonetheless a contract because there is superadded to it the command of a Judge. It still is a contract of the parties, and as the contract is capable of being rectified for an appropriate mistake, so, as the necessary consequence, is the decree which is merely a more formal expression given to that contract.

20. The case in Huddersfield Banking Co. Ltd. v. Henry Lister and Son, Ltd. [1895]2Ch.273, is an English authority on that point. But it does not, in my opinion, follow from the above that the decree of a competent Court is liable to be corrected in another litigation by an independent suit for the purpose, even though the said decree accurately expresses the Court's intention in passing it. No doubt, it has been held that when a prior decree was obtained by fraud, a subsequent suit would lie to have it declared that the said decree is null and void on that ground.

21. That stands upon quite a different footing, in my opinion. The point that has to be considered now is whether a fresh suit is maintainable to rectify an alleged mistake in the decree passed in a prior suit when the prior decree appropriately expresses the intention of the Court which passed it. No case was cited before us in which an English Court has held that such a suit would lie. Even if any English authority on that point be available, one would find it difficult to apply such a decision to a case governed by our Code of Civil Procedure. When once a decree between the parties has been passed by a Court of competent jurisdiction, the Code provides the various methods by which such a decree could be amended or reversed. The Privy Council in K. Venkata Subbamma Rao v. V. Venkatarama Rao [1901] 24 Mad. 1 held that a decree passed by a competent Court is subject to alteration only in the modes prescribed by the Code: see K. Venkata Subbamma Rao v. V. Venkatarama Rao [1901] 24 Mad.1 at p. 10; see also Sri Gopal v. Pirthi Singh [1902]24 All.429 at p. 437, Somasundaram Chetti v. Subramaniam Chetti A.I.R.1926 P.C.136. I may also refer to Draw v. Willis [1891] 1 Q.B. 450 where Lord Esher, M. R., observed as follows at. p. 452:

No Court has such a power of sotting aside an order which has been properly made, unless it is given by statute.

22. The subsequent observations are also instructive and may be referred to. The difficulty therefore arises whether the particular prayer in the present plaint which asks that the decree in the prior suit might be suitably amended and rectified is such as could properly be granted in the present suit. Our attention was drawn to the case in Jogeshwar Atha v. Ganga Bishnu Ghattack [1904] 8 C.W.N.473 decided by Maclean, C. J., and Pargiter, J.,as authority for the position that such a suit would lie, being one of a civil nature and not being expressly prohibited by any provision of law. The question arose in Calcutta subsequent to the decision in Jogeshwar Atha v, Ganga Bishnu Ghattack [1904] 8 C.W.N. 473 and in Kusodhaj Bhuhta v. Brajan Mohan Bhukta [1910] 43 Cal. 217, Jenkins, C. J., and Holmwood, J., were not prepared to follow the decision in Jogeshwar Atha v. Ganga Bishnu Ghattaak [1904] 8 C.W.N. 473. Having regard to the scheme and provisions of the Code of Civil Procedure, I find it difficult to understand how a subsequent suit would lie to rectify the decree in a prior suit. The Patna High Court in Mahindra Narain v. Mt. Lal Jhari Kuer, A.I.R. 1931 Pat, 296 : : AIR1931Pat296 and Janakudular Saran Misser v. Ambica Prasad Singh [1917] 2 Pat. L.J. 313 also had difficulty in holding that such a suit would lie: see also Bhonda Singh v. Dowlat Ray [1912] 14 I.C.93, Now, on examining the reasons given by the learned Judges in the case in Bepin Krishna Ray v. Jogeshwar Ray A.I.R.1921 Cal.730 I do not find that the arguments advanced in Kusodhaj Bhuhta v. Brajan Mohan Bhukta [1910]43 Cal.217 have been really refuted, If Venkatarama Ayyar v. Elumalai Naicker A.I.R.1923 Mad.442 be a decision on this question, of course we should ordinarily be bound to follow the same. But on this point, there is no real discussion by the learned Judges. The reason would seem to be that the decree complained against in second appeal in that case did not--from what appears from the printed papers--contain any direction regarding amendment of any prior decree. The decree in that case simply rectified the mistake in the mortgage document. That being so, the decision Venkatarama Ayyar v. Elumalai Naicker A.I.R.1923 Mad.442 is no real authority on this point. One should rather be very careful before laying down that, prima facie, fresh suits would lie to rectify decrees already passed between persons who were properly represented in the same when the prior decrees correctly expressed the intention of the Court.

23. It seems proper that rectification of a decree should ordinarily be done by the Court by which it was passed. What then, is the relief that should properly be granted in such cases, which, while working for justice, would also be in accordance with the procedure prescribed by our Code? It seems to me that the proper prayer to be asked in the second suit in such a case is to have the mortgage instrument rectified. The result of obtaining such a decree would be that the decree-holder in the prior suit would be in a position to ask the Court which passed the decree in the first suit to allow necessary amendments to be made in the plaint and in the decree passed therein. Courts would always be anxious to give effect to the decision passed between the parties relevant to the matter before them. If after obtaining a decree in the later suit, the decree-holder should make a request to the Court which passed the decree in the mortgage suit to have the necessary corrections carried out, it goes without saying that the Courts would in ordinary cases allow its records to be rectified accordingly. There are cases which show that a decree-holder could be prevented by an injunction issued in a subsequent suit, from executing the prior decree; and Courts would give effect to such subsequent decree and refuse execution of the prior decree. By analogy, we may also refer to cases where decrees and other proceedings passed by Court have been, by later decisions, declared to be not binding upon some or all of the parties to the same. When such a decision is passed between the parties in a later proceeding, then, as the Privy Council has pointed out, when the Courts which passed the prior decree or proceedings are approached to give effect to the later decision, they would always endeavour to give effect to such later decision passed between the parties and do the needful. I may refer to Ganesh Rao v. Tuljaram Rao [1913] 36 Mad. 295 at p. 304.

24. The question therefore is reduced to a simple matter of procedure: whether the plaintiffs in this particular case could properly ask for the second relief, when the first relief would substantially be enough to safeguard their rights, and whether the second relief should be granted to them. But I am unable to agree with the contention of the learned advocate for the appellant that the present suit should be held to be not maintainable simply because the plaintiffs have also asked for the second relief by way of amendment of the previous decree. Here I should like to mention that so far as this High Court is concerned, it has always been anxious to have mistakes regarding boundaries and survey numbers of properties in suit, corrected, though such mistakes have crept in, not only in the plaint but also in decrees subsequently passed, on the basis of such plaints, whenever the same could be done without working injustice in any way. The cases are all referred to in Appassa Rowthan v, Mohammad Rowthan : AIR1927Mad435 , There is therefore no real difficulty in practice, since the plaintiffs by obtaining a decree in respect of the first prayer would ordinarily be able to have the corrections carried out in the prior decree and proceedings.

25. While agreeing with the appellant's learned advocate that the second prayer would really be unnecessary, and should not be granted in the view mentioned already, I do not however see any real reason for modifying the decree passed in the particular case before us. As I already remarked, after obtaining such a decree, it would be open to the plaintiffs to ask the Court in which prior proceedings took place to have the necessary amendments made. Here the two Courts are the same, and with that advantage, the Court by its decree in the present suit directed the necessary rectifications to be made both in the mortgage-deed and in the decree and proceedings in the prior suit. That portion of the decree has been confirmed by the lower appellate Court also. In these circumstances, the objection is not a substantial one, but rather a technical one; and further I do not think that the appellant has in any way been materially prejudiced by reason of the same. The merits have been found against the appellant by both the lower Courts. On the whole, having regard to all the circumstances of this case, no sufficient grounds have been made out for our interference in Letters Patent Appeal.

26. On the question whether a second suit on the basis of the amended mortgage document is the only--or, appropriate--remedy open to the plaintiffs, it is not necessary for me to say anything in the present case. The mortgage before us comprises other items also; so does the decree in the prior suit; and there is further no question of limitation.

27. For these reasons, I agree that this Letters Patent Appeal should be dismissed with costs.


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