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Bhonda Singh and ors. Vs. Dowlat Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in14Ind.Cas.93
AppellantBhonda Singh and ors.
RespondentDowlat Roy and ors.
Cases ReferredSrigopal v. Pirthi Singh
Excerpt:
suit to amend decree or judgment - not maintainable--jurisdiction--judgment or decree within authority. - .....and the result of that was that a regular civil suit was instituted between the parties to the rent suit for the determination or adjustment of the area of the holding and the rate of rent. in consequence, when the rent suit cams on for trial, both parties agreed that, so far as that suit was concerned, the question what was the correct area and the yearly rent should be left open; and the only issue which the court decided was whether the defendants, the present plaintiffs, had paid their rents for the years in suit or not. the court found that the payment had not been proved and gave a decree to the plaintiffs for the full amount claimed in that suit. it appears that afterwards there was an application made under section 206 of the code of civil procedure, 1882, for rectification.....
Judgment:

1. In the present appeal, the only point which has been raised on behalf of the appellants is whether a suit lies in the Civil Court for the purpose of amending a judgment and decree previously passed in a suit between the same parties by another Civil Court, on the ground that a mistake had been made by the Judge of the previous Court in his judgment and decree. The facts of the original suit, which in this case it is said was incorrectly decided, are that the present defendants brought a suit against the plaintiffs to recover the rent of their holding for a certain number of years. The defendants in that suit, (who are the plaintiffs in the present suit), raised objections on the grounds that the area stated in the plaint was wrongly given and that the rate of rent claimed was incorrect. They further pleaded payment. While that suit was in progress, a survey and settlement of rights was held in the Mauzah and the result of that was that a regular civil suit was instituted between the parties to the rent suit for the determination or adjustment of the area of the holding and the rate of rent. In consequence, when the rent suit cams on for trial, both parties agreed that, so far as that suit was concerned, the question what was the correct area and the yearly rent should be left open; and the only issue which the Court decided was whether the defendants, the present plaintiffs, had paid their rents for the years in suit or not. The Court found that the payment had not been proved and gave a decree to the plaintiffs for the full amount claimed in that suit. It appears that afterwards there was an application made under Section 206 of the Code of Civil Procedure, 1882, for rectification of the decree. That application was, however, dismissed as the decree was found to be in accordance with the terms of the judgment. In that application, it was alleged that the suit had been decreed in favour of the plaintiffs for recovery of rent from the tenants at the jama admitted by them and not at the rent claimed as given by the decree. No proceedings were taken to set aside that judgment and decree and no appeal was preferred against the decision of the Court in that rent suit. The present suit has been instituted by the tenants, the defendants in that case, alleging that the Court which decided the rent suit was wrong in giving the plaintiff a decree for the full amount claimed instead of giving them a decree for rent at the amount admitted by them (defendants) and praying that the judgment and decree in the rent suit might be rectified.

2. The Court of first instance held that the suit was not maintainable and dismissed it. On appeal, the lower Appellate Court has held that the suit is maintainable and has set aside the judgment and decree of the Court of first instance and has decreed the suit. The defendants in the present suit have now appealed.

3. In support of the appellants' contention that the present suit would not lie, the learned Vakil, who appears on their behalf, has placed reliance on the decision of this Court in the case of Chand Mea v. Srimati Asima Banu 10 C.W.N. 1024. The learned Judges who decided that case took into consideration the previous decision of this Court in the case of Jogeswar Atha v. Ganga Bishun Ghattach 8 0. W.N. 473. Reference has also been made on behalf of the appellants to a decision of this Court in the case of Sadho Misser v. Golab Singh 3 C.W.N. 375. These cases have also been referred to by the lower Appellate Court in its judgment. The learned Subordinate Judge holds that the case in Jogeswar Atha v. Ganga Bishun Ghattaci 8 0. W.N. 473 supports the view that the present suit would lie and he goes on to say that the decision in Chand Mea v. Srimati Asima. Banu 10 C.W.N. 1024 approves of that ruling.

4. The case for the plaintiffs in the 'present suit was, that when the rent suit was decided, they were under the impression that a decree had been granted at the yearly rent admitted by them and that they were not aware that it had been decreed at the higher rate until execution was taken out against them. They then applied under Section 206 of the old Code of Civil Procedure and, when that application was rejected, it was too late to apply, under Section 623, Civil Procedure Code, 1882, for a review of judgment or to appeal: and, in consequence, no application was made and no appeal was preferred. There can be no doubt that the Judge who tried the suit for rent had jurisdiction to pass the decree which he passed in that suit and there can also be no doubt that, if the defendants were of opinion that the decree was wrong by reason of a mistake or any other cause, the proper remedy open to them was by an application for review or by an appeal. Admittedly, neither of these remedies was adopted and the only excuse offered for their failure is that the defendants, after the decree had been passed against them, did not think it necessary to ascertain what the terms of the decree were and did not discover that a decree for the full amount claimed had been passed against them until the execution was taken out. In our opinion, such an excuse is not sufficient to explain their failure to adopt the remedies open to the present plaintiffs for correcting the judgment and decree. The learned Judges, who disposed of the case of Chand Mea v. Srimati Asima Banu 10 C.W.N. 1024, in discussing the previous case of Jogeswar Atha v. Ganga Bishun Ghattack 8 0. W.N. 473 in which it was held that a suit lies in a Civil Court for rectifying a mistake in a decree, pointed out that the facts of that case were peculiar. In that case, the Court of first instance, under the influence of a mistake due to misdescription of a certain property, made a decree which it had no authority to make and the learned Judges did not dispute the correctness of the decision that a suit would lie for the purpose of correcting that mistake. At the same time, they held in the case before them that it could not be broadly laid down that any error in a decree made by a Court might be challenged by a separate suit. We think the principle which they adopted is one which we should follow in this case. They then held that the suit could not be maintained because the decree in the previous suit which it was sought to set aside was one which the Court had jurisdiction and authority to make. In the present case, there can be no doubt whatever that the Court which decided the suit for the recovery of rent had full jurisdiction and authority to give a decree for the full amount claimed by the plaintiffs. It is impossible for us now to say what were the circumstances under which the decree was granted in the rent suit and, therefore, in the present appeal, we hold that, as the Court of first instance had authority and jurisdiction to make the decree which it made and as the judgment-debtors under that decree failed to adopt the remedies open to them under the law, the present suit is not maintainable. This view also appears to find support from the remarks made by their Lordships of the Privy Council in the case of Srigopal v. Pirthi Singh 6 C.W.N. 839 at p. 896 24 A. 439 : 4 Bom. L.R. 827.

5. The result, therefore, is that this appeal is decreed, the judgment and decree of the lower Appellate Court are set aside and those of the Court of first instance restored with costs in this and the lower Appellate Court.


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