1. We are invited by learned Counsel for the defendants in this case to recall the order made on the 1st March 1909 and to dismiss the suit. The application is of a somewhat novel character, and it is consequently necessary to state the circumstances under which it has been made.
2. This action which was commenced as far back as the 20th June 1898 to enforce specific performance of an agreement made on the 21st June 1895, was dismissed by Mr. Justice Chitty on the 6th April 1908. An appeal was preferred against his judgment, and on the 1st March, 1909, judgment was delivered in the appeal. The concluding: portion of that judgment is as follows: 'There is, how-ever, one matter which has not been argued before us or in the Court of first instance, viz., that the executors of Bangsa Gopal are necessary parties to this suit. This suit has been brought by the heirs of Bengsa Gopal. The contract is, however, one entered into by the -executors of his will and they ought to have been the plaintiff. In these circumstances, the record must be amended by adding the executors as co-plaintiffs, and subject to that being done, there must be a decree for specific performance of the agreement as against the heirs of Troylukho Nath Bose. It is not denied that the defendants are entitled to a reduction of the purchase money in respect of the sum of Rs. 1,046-13 received by the executors from the Monghyr Court. This appeal must, therefore, be allowed with costs, both here and in the Court of first instance.'
3. No steps, however, have been taken, till quite recently, to bring the executors of Bangsa Gopal on the record as directed by this judgment; consequently, an application was made by the defendants last week for an order upon the plaintiffs to bring the executors of Bangsa Gopal on the record and also for an order, in the alternative, that on failure to do so the suit should stand dismissed. This application was made on notice, and the plaintiffs obtained time till the 27th August to carry out the order of the Court. On the 27th, an application was made to bring the executors of Bangsa Gopal on the record, and, as soon as it was intimated by the Court that the application would be granted, the learned Counsel for the defendants applied that the suit should be dismissed. His contention in substance was, that now that the suit had been properly constituted, it was barred by limitation under Section 22 of the Limitation Act, and in support of this position, he placed reliance on the case of Imam Ali v. Baij Nath Ram Shah 33 C. 613; 10 C.W.N. 551: 3 C.L.J. 576 and Ram Kinkar Biswas v. Akhil Chunder Chaudhri 35 G. 519; 2 M.L.T. 137; 5 C.L.J. 242; 11 C.W.N. 350 (F.B.). The learned Counsel for the plaintiffs objected that it was not open to the defendants to impeach the validity of the judgment delivered on the 1st May, 1909, in this indirect manner. To this, the learned Counsel for the defendants answered that so long as the order had not been finally drawn up, the Court had inherent power to rescind the order if it was shown that the order was erroneous and should never have been made. As authorities for that view, he placed reliance on the cases of In re St. Nazaire Company (1879) 12 Ch. D. 88, In re Suffield and Watts (1888) 20 Q.B.D. 693; 36 W.R. 584; 58 L.T. 911; 5 M.B.R. 83 and Neale v. Gordon Lennox (1902) App. Cas. 465; 73 L.J.K.B. 939; 66 J.P. 757; 87 L.T. 341; 18 T.L.R. 791; 51 W.R. 140.
4. These cases, no doubt, lay down the proposition that when an order or judgment of the Court has once been perfected, the Court has no jurisdiction to alter it, but that so long as the order has not been perfected, the Judge has the power to reconsider the matter. The cases, however, are not authorities for the proposition that it is obligatory on the Court to reconsider the matter and withdraw the order previously made. The suggestion in the present case is that we should recall the considered judgment of the 1st March 1909. This would obviously mean reconsideration of the whole matter in controversy between the parties. The terms of the judgment we have set out indicate plainly that it was then intended that as soon as the executors of Bangsa Gopal were brought on the record, the decree in favour of the plaintiff should follow as a matter of course. In our opinion, to use the language of Sir George Jessel, in the case of In re St. Nazaire Company (1879) 12 Ch. D. 88 the present application is in essence a petition of appeal against an order made by the Court of appeal, and the defendants are really seeking to take advantage of the circumstance that there has been a change in the constitution of the Bench. We do not think it would be right for us now to re-open the whole matter in controversy between the parties and to discharge the order made on the 1st March 1909. We have the less hesitation in saying this as we are satisfied that if the defendants have any grievance, they are not without a remedy; as soon as the decree is drawn up, they will be entitled to appeal to His Majesty in Council, and it will be open to them in that appeal to contend that the suit as finally constituted by order of this Court, was barred by limitation and ought to have been dismissed.
5. The result is that the application for bringing the executors of Bangsa Gopal on the record is granted, and the application to recall the order of the 1st March 1909 is refused. Under the circumstances we make no order as to costs.
6. Mr. Sen.--The order could not be completed by us on Saturday--we ask time till today.
7. The order must be completed this day.