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Brindaban Chandra Ghosh Vs. Damodar Prasad Panday - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1925Cal304
AppellantBrindaban Chandra Ghosh
RespondentDamodar Prasad Panday
Cases ReferredChhajju Ram v. Neki A.I.R.
Excerpt:
- .....hearing. on 14th november, their lordships of the privy council delivered judgment in the case of brij narain rai v. mongla prasad a.i.r. 1924 p.c. 50; this was published in india in january and appeared in the calcutta weekly notes on 14th january. when we heard the application for review on 1st february, this later judgment was before us, and we called on the defendants to show cause why in view of that judgment our decision should not be reversed.3. without going into an examination of the differences between the judgment in sahu ram's case a.i.r. 1917 p.c. 61 and the judgment in brij narain's case a.i.r. 1924 p.c. 50. i think it is enough to say that the circumstances in which we have to deal with this application are altogether unusual.4. it is contended on behalf of the defendants.....
Judgment:

Walmsley, J.

1. These are applications for review of a judgment delivered by us on 10th May, 1923. The facts of the suits are stilted in our judgment. It is convenient, however, to mention here that the plaintiffs were mortgagees and the defendants wore the sons of the mortgagor and governed by Mitakshara law: the lower Courts had decreed the suits in part, that is, to the extent that the principal secured by the mortgage corresponded with the debt due on a prior mortgage. The defendants as appellants urged that the prior mortgage was not an 'antecedent debt,' and they were not liable under the mortgages executed by their father in favour of the plaintiffs. We upheld that contention in the belief that the decision of their Lordships of the Privy Council in the case of Sahu Ram Chandra v. Bhup Singh A.I.R. 1917 P.C. 61 compelled us to do so.

2. This application for review was presented on 4th August, and as I was away at the time it could not be dealt with until after the vacation. On 20th November, we adjourned the hearing. On 14th November, their Lordships of the Privy Council delivered judgment in the case of Brij Narain Rai v. Mongla Prasad A.I.R. 1924 P.C. 50; this was published in India in January and appeared in the Calcutta Weekly Notes on 14th January. When we heard the application for review on 1st February, this later judgment was before us, and we called on the defendants to show cause why in view of that judgment our decision should not be reversed.

3. Without going into an examination of the differences between the judgment in Sahu Ram's case A.I.R. 1917 P.C. 61 and the judgment in Brij Narain's case A.I.R. 1924 P.C. 50. I think it is enough to say that the circumstances in which we have to deal with this application are altogether unusual.

4. It is contended on behalf of the defendants that this application is not maintainable, that the ground on which it is pressed was not set out in the application and there has been no amendment, that the rule is in a wrong form, because this Court should at most sat aside the judgment delivered instead of replacing it with another, and that on the merits our decision is correct in spite of the judgment in Brij' Narain's case A.I.R. 1924 P.C. 50.

5. The second and third objections may be dismissed in a few words. From the dates I have mentioned, it is obvious that no reference to the recent judgment could have been made in the applications; the principle it establishes was, however, mentioned and the judgment was read to us when we granted the rule, and as the Rule expressly refers the judgment there can be no prejudice to the defendants in the facts that the application was not amended.

6. With regard to the third ground it is no doubt open to us to proceed by stages but that course is not compulsory; there is precedent for proceeding at once to a judgment on the appeal in favour of the plaintiffs and in the rather special circumstances of this case that seems the only logical thing to do.

7. There is more substance about the first objection, but I can hardly deal with it until I have considered the merits. As I have said, in our judgment we thought that we were following the law as laid down in Sahu Ram's case A.I.R. 1917 P.C. 61. We referred to the case of Arumugam Chetty v. Muthu Koundan [1919] 42 Mad. 711 and to two Allahabad cases of Ram Singh v. Chet Ram [1919] 41 All. 529 and Chet Ram v. Ram Singh A.I.R. 1922 P.C. 247. The order made by the Allahabad High Court on Brij Narain's application for leave to appeal refers to the Madras decision. Their Lordships of the Privy Council refer to this conflict of opinion between the Courts of Madras and Allahabad, and accepted the Madras view. That is the view which we did not follow. It is quite clear to me that in the light of the judgment in Brij Narain's case A.I.R. 1924 P.C. 50 our decision was wrong.

8. It is suggested that as we found on the facts that necessity bad not been proved, the question of law does not arise. I cannot agree to this contention: it was only in the alternative that the plaintiffs sought to rely on necessity.

9. Now, I can come to the first objection. It is urged that the application cannot ho brought within any one of the throe clauses of Order 47, Rule 1. No one suggests that it can come under the first. 'Other sufficient cause ' might seem wide enough to cover it, but the remarks in the case of Chhajju Ram v. Neki A.I.R. 1922 P.C. 112 make me hesitate to use those general words. The remaining clause is ' error apparent on the face of the record,' and the learned Vakil for the petitioner urges that this expression is wide enough to embrace such a case as this. I think that view is right. The law has not been altered: their Lordships are careful to say that the judgment in Sahu Ram's case A.I.R. 1917 P.C. 61 introduced no modification and that again the judgment in Brij Narain's case A.I.R. 1924 P.C. 50 made no change. The position therefore is that we have been told authoritatively that we put a wrong construction on the decision that we were bound to follow and imagined that we were following. In such circumstances I think we ought to hold that there is an error apparent on the face of the record.

10. Accordingly I grant the application of review, set aside our judgment of 10th May, 1923, and restore the judgments and decrees of the District Judge.

11. On the appeals we showed indulgence to the plaintiffs in the matter of costs. For similar reasons I think we should now show the same indulgence to the defendants and direct that each party pays his own costs in these applications. The petitioners are entitled to a refund of the excess Court-fees paid on the review applications under Section 15 of the Court Fees Act.

Suhrawardy, J.

12. I agree.


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