1. This Rule was obtained by defendant No. 3, judgment-debtor No. 3, Krishna Mohan Kundu, against Order No. 256 dated May 25, 1950, passed by Mr. N. Banerjee, Subordinate Judge, Alipur, granting an amendment of a reopened decree in Title Suit (Mortgage) No. 89 of 1928.
2. The facts leading up to the present dispute may be stated as follows: The plaintiff who are opposite parties Nos. 1 to 9 instituted Title Suit (Mortgage) No. 89 of 1928 against the petitioner and two other persons who are the mortgagors. The mortgage suit comprised six items of properties. A final decree for sale for a sum of Rs. 88,801-9-3 pies was passed on the 26th of March, 1929. This decree was executed in Title Execution Case No. 76 of 1929. Items Nos: 1 to 4 of the schedule to the plaint in the Mortgage Suit were put up to sale on the 23rd of August, 1929 and were purchased by the decree-holders for, a sum of Rs. 69,000/-. Property No. 5 was also purchased by the decree-holder for Rs. 15,000/- on June 16, 1938. Property No. (J of the schedule to the said Title (Mortgage) Suit was not put up to sale. A sum of Rs. 4801-8-3 pies remained outstanding. The decree-holder auction-purchaser thereafter took possession of items Nos. 1 to 4 on the 6th of June, 1936, and of item No. 5 on the 11th of May, 1940.
On the 1st of September, 1940, the Bengal Money Lenders Act came into operation. Thereafter, on the 7th of August 1941, judgment-debtor No. 2, Mohini Mohan Kundu, since deceased, and judgment-debtor No. 3, Krishna Mohan Kundu, made an application for relief under Section 36, Bengal Money Lenders Act. This gave rise to Miscellaneous Case No. 101 of 1941. The Miscellaneous Case was allowed by order No. 225 dated the 28th of September 1942. The order portion reads as follows:
'Misc. Case No. 101 of 1941 be allowed. The preliminary and the final decree in Title Suit No. 89 of 1928 be reopened and a new preliminary decree for Rs. 86,458/- be passed with costs Rs. 3507-5-3 pies. Period of grace be allowed up to 1.9.43. The decretal amount shall be payable in ten equal kists, the first kist falling due on 1.1.43. The mortgaged properties sold in auction and purchased by the decree-holder shall be restored to the judgment-debtors who are directed to pay up the municipal rates and taxes already decreed within two months from this date. They are further directed to pay up the future rates & taxes regularly till the decree is fully satisfied and file the paid up bills in Court. In default, the decretal amount shall fall due at once.'
A reopened decree was drawn up in accordance with the aforesaid order.
3. The parties are in dispute as to whether the possession of the properties purchased by the decree-holder has been restored to the judgment-debtors or not. No finding has been reached by the Subordinate Judge on this point. The Subordinate Judge has found that the instalments directed to be paid have not been paid by the judgment-debtors nor have the municipal rates and taxes been paid by the judgment-debtors.
4. It appears however that the judgment-debtors filed an application under Section 8 of the Bengal Agricultural Debtors Act. On the 17th of June, 1942, notices under Section 34 of the Bengal Agricultural Debtors Act were served on the decree-holders. The proceedings under the Agricultural Debtors Act remained pending till the 10th of September, 1949 when the same were dismissed. In the meantime, on the 11th of June, 1948 the decree-holders made an application for amendment of the re-opened decree and prayed for a direction in terms of Section 36(2) (e) of the Bengal Moneylenders Act directing restoration of possession of the decree-holders auction-purchasers in case of default in payment of the instalments and the municipal rates and taxes as provided for in the re-opened decree. By Order No. 256 dated the 25th of May, 1950, the learned Subordinate Judge made an order directing that the decree be amended by the addition of the words indicating.
'that in default of payment of any of the instalments and of the municipal rates and taxes by the judgment-debtors till the decree is fully satisfied the decree-holder will be entitled to apply for a final decree and that in that case the provisions of Section 36(2) (e) of the Bengal Moneylenders Act will apply,'
at the end of paragraph 2(i) of the decree. It Is the propriety of this order which is in question in this Civil Revision Case.
5. It further appears that in the meantime the decree-holders had filed a First Appeal to this Court being F. A. 2 of 1950. This appeal was directed against the reopened decree. This appeal, however, was not proceeded with and (c)n the 6th of June, 1950, the appeal was dismissed.
6. The only question which arises for decision in this Civil Revision Case is whether the amendment which was allowed by the learned Subordinate Judge is in accordance with law. The learned Subordinate Judge in his judgment has stated that the reopened decree is in consonance with the order directing the reopening of the decree but in his opinion as the order directing the decree to be reopened and the decree passed in terms of the order have not incorporated a provision in accordance with Section 35(2) (e), Bengal Money Lenders Act, it must be taken that the Court overlooked the said provision although it intended to pass a decree in terms thereof. The Subordinate Judge has observed that this is a case of an accidental slip or omission which the Court. is entitled to rectify either under S: 152 of the Code of Civil Procedure or in the exercise of its powers under Section 151 of the Code of Civil Procedure. The Subordinate Judge has observed that the amendment, if allowed, would not be inequitable and that there has not been any delay on the part of the decree-holders in making the application for amendment of the decree.
The real question is whether there has been an accidental slip or omission on the part of the Court when it made its order directing the decree to be reopened. The meaning of the expression 'accidental slip' occurring in Section 152 of the Code of Civil Procedure was considered by the Federal Court in the case of 'SACHINDRA NATH v. SM. PANKIJINI DASSI', 5 DLR (F C) 68. Patanjali Sastri J. delivering the opinion of the Court observed as follows:
'It needs to be stressed that the key-word in the relevant phrase is 'accidental' and it qualifies 'omission' also, with the result that the procedure provided by the section cannot be used to correct omissions, however, erroneous, which are intentional, not indeed in the sense of conscious choice for no Court is supposed to commit an error knowing it to be such, but in the sense that the Court meant to omit what was omitted.'
7. We have to consider whether in the facts of the present case the omission on the part of the Court in giving a direction which is now sought for was an accidental slip or error. I have already quoted the relevant portion of the order directing the decree to be reopened. The order clearly states the consequence of a default on the part of the judgment-debtor in not paying the instalments or the municipal rates and taxes, the direction given being that 'in! default the decretal amount shall fall due at once.' It cannot therefore be said that the Court while passing an order directing the decree to be reopened was not conscious of what( would follow in case of a default on the part of the judgment-debtor in complying with the! directions contained in that order. It is purely a case of error on the part of the Court. Such an error can only be remedied by proper proceedings either by way of a review if that is allowable under the law or by an appeal against the reopened decree. In the present case, the decree-holders did prefer an appeal to this Court, but for reasons best known to the decree-holders they did not prosecute the appeal and allowed the same to be dismissed. In these circumstances, it is difficult to say that the error, in the order of the Court reopening the decree i was an accidental slip or omission which justified the Court in exercising its power under Section 152, Code of Civil Procedure.
The learned Subordinate Judge in the order which is now sought to be challenged, when pressed with a contention on behalf of the judgment-debtors that if the decree was erroneous in law because of non-compliance with Section 36 (2) (e) of the Bengal Money Lenders Act, the Court had no power under Section 152 or Section 151 of the Code of Civil Procedure, and that in such a case the proper remedy lay either under Order XLVII, Rule 1 of the Code of Civil Procedure or by an appeal against the reopened decree, observed that the provisions for such a relief do not take away the Court's power to correct its own decrees or orders, and that such power could be exercised for the ends of justice under Section 151 of the Code of Civil Procedure. The learned Subordinate Judge was quite oblivious of the fact that the inherent powers of a Court cannot be invoked where there is another remedy available to the party concerned (See ABDUL KASIM ABU AHMAD v. ALLAHABAD BANK, LTD.', 44 Cal 929 (FB). In this case, the decree-holder had his remedy by way of an appeal. The decree-holder availed himself of this remedy but the appeal was dismissed. In these circumstances, it was not open to the Court below to assume powers under Section 151 of the Code of Civil Procedure. The order of the Court directing an amendment of the decree either under Section 151 or under Section 152 of the Code of Civil Procedure was an illegal assumption of jurisdiction on the part of the Court and as such calls for an interference by this Court in revision.
8. In the result, this Rule must be made absolute. The order complained of is set aside and the amendment directed to be made by the Court below is disallowed. The petitioner is entitled to his costs of this Rule.
Das Gupta, J.
9. I agree.