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Kusadhaj Bhakta Vs. Broja Mohan Bhakta Minor by His Mother and Guardian, Srimati Rashmani Dassi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in31Ind.Cas.13
AppellantKusadhaj Bhakta
RespondentBroja Mohan Bhakta Minor by His Mother and Guardian, Srimati Rashmani Dassi
Cases ReferredBhonda Singh v. Dowlat Roy
Excerpt:
compromise decree, suit to set aside - mistake, if valid ground--remedy--amendment of decree--fresh suit, not maintainable fraud, suit to set aside decree on ground of, maintainability of. - lawrence jenkins, c.j.1. this appeal arises out of a suit to set aside a decree in a previous suit, on the ground that the judge in passing the decree in that previous suit made a mistake. as an authority for this suit and its competence we have been referred to the decision in the case of jogeswar at a v. ganga bishnu ghattack 8 c.w.n. 473. it may be that a superficial examination of that decision gives an appearance of authority for the proposition which the respondent advances before us and apparently has advanced with success in both he lower courts.2. already it has become noticeable that there has been a crop of cases in this presidency in which it has been sought to set aside previous decrees on the ground of fraud. the readiness to find fraud encourages this class of litigation.....
Judgment:

Lawrence Jenkins, C.J.

1. This appeal arises out of a suit to set aside a decree in a previous suit, on the ground that the Judge in passing the decree in that previous suit made a mistake. As an authority for this suit and its competence we have been referred to the decision in the case of Jogeswar At a v. Ganga Bishnu Ghattack 8 C.W.N. 473. It may be that a superficial examination of that decision gives an appearance of authority for the proposition which the respondent advances before us and apparently has advanced with success in both he lower Courts.

2. Already it has become noticeable that there has been a crop of cases in this Presidency in which it has been sought to set aside previous decrees on the ground of fraud. The readiness to find fraud encourages this class of litigation and the new departure has been a misfortune. If we encourage the idea that the alleged mistake of a Judge is to furnish a disappointed litigant with a fresh smarting point for keeping his opponent in Court, then the misfortune would be gravely increased to the public detriment. There must be some end to litigation. I have said there may appear to be some authority for this suit in the case I have mentioned. But it is apparent from the judgment in that case that there was no intention of proceeding beyond the English authority. No instance has been brought to our notice when a suit to set aside or rectify a decree in a previous suit has succeeded on the ground that the Judge was mistaken though his decree accurately expressed his intention. The only case to which reference was made in the case of Jogeswar Atha v. Ganga Bishun Ghatiack 8 C.W.N. 473 was a decision of an English Court, where the decree was one passed not after contest but on agreement between the parties. But that class of case is governed by a principle that has no application here. It is well settled that a, contract of the parties is nonetheless 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 it merely a more formal expression given to that contract. I am unable to draw from those decisions of which Hadderstield Banking Co. Limited v. Henry Lister and Son Limited (1895) 2 Ch. D. 273 : 64 L.J. Ch. 523 : 12 331 : 72 L.T. 703 : 43 W.R. 567 are typical the conclusion that a decree after contest and giving accurate expression to the Court's intention can be set aside. There is no analogy between the two cases. In the one the decree is set aside merely because the agreement on which it was founded was set aside. In the other case this consideration has no application. It is not as if the litigant is without remedy. Our Code provides ample means without a fresh wait whereby the litigant can obtain the correction of error. If a fresh suit can be started on the ground placed before us here, then I can see no end to litigation. In holding as I do that this suit does not lie, I am making no new departure. I am merely following previous decisions of this Court and in particular the decision of Sir Comer Petharam in Mahomed Golab v. Mahomed Sulliman 21 C. 612 the decision of a Division Bench in the case of Sadho Misser v. Golab Singh 3 C.W.N. 375 and finally, the decision of a third Division Bench in the case of Bhonda Singh v. Dowlat Roy 14 Ind. Cas. 93 : 15 C.L.J. 675.

3. It is not suggested in this case that there was any fraud. Had that been so then the matter would have been different, for it is recognized that a decree can be set aside on the ground of fraud if of the required character.

4. In my opinion the decree under appeal is erroneous and should be set aside and the suit dismissed with costs throughout.

Holmwood, J.

5. I entirely agree with what has fallen from the learned Chief Justice. I desire to add that I do not think it matters whether the decree accurately expresses the intention of the judgment, as if there is any divergence between the decree and the judgment, as has been thrown out at one part of the argument before us, then this is a matter for amendment. As long as the Court has jurisdiction and authority to decide a matter, as it has decided it, it cannot be re-opened by a suit.

6. I desire to emphaise all that has fallen from, the Chief Justice with regard to the disastrous consequences which will follow by opening any fresh door of litigation, such as appears to be indicated in this case.


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