1. This is a Rule for the review of the judgment of this Court in Nanda Lal Agrani v. Jogendra Chandra Datta 70 Ind. Cas. 960 : 36 C.L.J. 421; (1923) A.I.R. (C.) 53.
2. A preliminary question of considerable importance has been raised with regard to the amount of Court-fee payable on the application. We have heard the Assistant Government Pleader as the matter affects the public revenue and the point must be examined before we consider the application on the merits.
3. The subject-matter of the appeal was valued at Rs. 7,750, and on the 20th December, 1919, a Court-fee of Rs. 385 was paid on the memorandum in accordance with the table of rates of ad valorem fees embodied in Schedule I of the Court Fees Act, 1870. The appeal was thereupon registered and was heard in due course. Judgment was pronounced on the 29th August, 1922 when the appeal was dismissed with costs. On the 21st November, 1922, the appellant presented the application for review of judgment now under consideration. The application bore a Court- fee of Rs. 192-8-0, that is, one-half of Rs. 385, the amount payable and paid on the memorandum of appeal when it was lodged in this Court. The Stamp Reporter, to whom the application was presented in the first instance, made a note that there was a deficiency of Rs. 115. In the opinion of the Stamp Reporter, the amount payable as Court- fee was Rs. 307-8-0, that 'is, one-half of Rs. 615 which would have been payable on the memorandum of appeal, if it were lodged in this Court on the 21st November, 1922, when the application for review was filed. At this stage, it is necessary to mention that after the 20th December 1919, when the memorandum of appeal was filed and before the 1st November, 1922, when the application for review was lodged, the Bengal Court Fees (Amendment) Act, (IV of 1922 B.C.) had come into force on the 1st April, 1922. Section 5 of this amending Statute modified Article 1 of Schedule I of the Court Fees Act, 1870, by enhancement of the rate of fee payable on plaints, written statements and memorandum of appeal. Section 9, as a corollary, altered the table of rates of ad valorem fees appended to the same schedule. The consequence was that, from the 1st April, 1922, the amount of Court-fee payable on a memorandum of appeal valued at Rs. 7,750 was raised from Rs. 385 to Rs. 615.
4. The determination of the question now raised before us depends upon the true construction of Clauses 4 and 5 of Schedule I of the Court Fees Act. Article 4 provides that the proper fee for an application for review of judgment, if presented on or after the ninetieth day from the date of the decree, is the fee leviable on the plaint or memorandum of appeal. Article 5 provides that the proper fee for an application for review of judgment, if presented before the ninetieth day from the date of the decree, is one-half of the fee leviable on the plaint or memorandum of appeal. There is no dispute that as the application in the present case was made before the ninetieth day from the date of the decree, Article 5 is applicable, and the argument has centered round the question, what is the point of time to which the expression leviable has reference.
5. The Assistant Government Pleader has invited us, on behalf of the Secretary of State for India in Council, to read into the third column of Articles 4 and 5 the following expression: 'If the plaint or memorandum of appeal were presented when the application for review is made.' There are two obvious objections to the proposed construction; namely, first, it requires us to read into the articles words which are not to be found there; and, secondly, the fiction that is invoked is absolutely contradictory to the actual facts because an application for review of judgment cannot be concurrent with a plaint or memorandum of appeal which must of necessity precede the judgment to be reviewed. As Lord Mansfield observed in Johnson v. Smith (1760) 2 Burr. 950; at p. 962 : 07 E.R. 647 fiction has no place where substantial justice does not require its interference, still less where substantial justice would suffer from its operation. 'The Court would not endure that a mere form or fiction of law, introduced for the sake of justice should work a wrong, contrary to the real truth and substance of the thing.' This is an echo of what Lord Coke had said in Butter and Baker's case (1591) 3 Co. Rep. 25a at p. 30a; 78 E.R. 681, 'the law will never make any fiction, but for necessity and in avoidance of a mischief.'
6. The petitioner, on the other hand, urges that the Court Fees Act itself contains a provision which specifies when the fee is leviable on the plaint or memorandum of appeal and he invites our attention to Section 6 which is in the following terms:
Except in the Courts hereinbefore mentioned, no document of any of the kinds specified as chargeable in the First or Second Schedule to this Act annexed, shall be filed, exhibited or recorded in any Court of Justice, or shall be received or furnished by any public officer, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document.
7. This show conclusively that the requisite Court-fee is leviable when the Plaint or memorandum is filed: Amjad Ali v. Muhammad Ismil 20 A. 11 at p. 17; A.W.N. (1897) 157 : 9 Ind. Dec. (N.S.) 367 This is corroborated by the provisions of 0 VII of the Code of Civil Procedure, 1908. Rule 1 requires that the plaint shall in addition to other particulars, contain a statement of the value of the subject matter of the suit for the purposes of jurisdiction and of Court-fees. Rule 11 ordains that the claim shall be rejected when written upon paper insufficiently stamped if the plaintiff has failed to supply the requisite stamp paper within a time to be fixed by the Court.
8. The Assistant Government Pleader urges that if the expression 'leviable' refers to the time of presentation of the plaint or memorandum of appeal the Legislature might as well have replaced it by the word 'levied.' This argument is fallacious and overlooks the fact that what is leviable might not have been levied. In this connection, reference may be made to sections '12 and 28 of the Court Fees Act.
12(i) Every question relating to valuation for the purpose of determining the amount of any fee chargeable under this chapter on a plaint or memorandum of appeal shall be decided by the Court in which such plaint or memorandum as the case may be, is filed, and such decision shall be final as between the parties to the suit.
(ii) But whenever any such suit comes before a Court of Appeal reference or revision, if such Court considers that the said question has been wrongly decided to the detriment of the revenue, it shall require the party by whom such fee has been paid to pay so much additional fee as would have been payable had the question been rightly decided, and the provisions of Section 10, paragraph ii, shall apply
28, No document which ought, to bear a stamp under this Act shall be of any validity, unless and until it is properly stamped.
9. But, if any such document is through mistake or inadvertence received, filed or used in any Court or office without being properly stamped, the presiding Judge or the head of the office, as the case may be, or, in the case of a High Court, any Judge of such Court, may, if he thinks fit, order that such document be stamped as he may direct; and, on such document, being stamped accordingly, the same and every proceeding relative thereto shall be as valid as if it had been properly stamped in the first instance.
10. Reference may also be made to Section 149 of the Civil Procedure Code, 1908.
149. Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to Court-fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such Court-fee; and upon such, payment the document in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.
11. It is plain that if the Legislature had, in Articles 4 and 5 used the expression 'levied' instead of 'leviable,' the result would have been that if by mistake a smaller amount than what is leviable on the plaint or memorandum of appeal, has been levied, the applicant for review will be entitled to the continued benefit of the mistake. Conversely, if the amount levied is in excess of what is leviable, the petitioner will be prejudiced, though he may be entitled to a refund of the sum paid in excess: Lakhi Narain Jagdeo v. Kirtibas Das 19 Ind. Cas. 971 : 18 C.L.J. 133 and In the Matter of the Petition of Prosunno Chander Roy Chowdhury 11 B.L.R. 372 note. There is thus ample reason why the Legislature should have used the term 'leviable' and not 'levied.' The use of the term 'leviable' does not, in our opinion, justify the inference that the Legislature intended to introduce a fiction into the law, namely, an imaginary representation of the plaint or memorandum of appeal at the time when the application for review is filed.
12. We are fortified in this conclusion by another circumstance of a very special character. In the case of a suit or an appeal, the litigant is required to value the relief claimed and to pay Court-fee accordingly. In the case of an application for review, the applicant is not required to value the relief claimed and to pay Court-fee on the basis of such valuation. It is immaterial whether the applicant seeks a review of the judgment in respect of the whole or a fraction of the subject-matter of the controversy. The proper fee for the application is the fee leviable on the plaint or memorandum of appeal, whether the review affects the whole or a part of the decree: Nobin Chunder Chuckerbutty v. Mahomed Uzir 3 C.W.N. 292, Imdad Hasan Khan v. Badri Prasad A.W.N. (1898) 212, In re Sheikh Ali Ahmad 1 Ind. Cas. 209 : 31 A. 294 : 6 A.L.J. 215, and Husaina v. Sahib Nur 20 Ind. Cas. 3 : 254 P.L.R. 1913 : 159 P.W.R. 1913; though the, decisions in Proceedings, 16th January, 1872 7 M.H.C.R. App. 1 and In re Manohar G. Tambekar 4 B. 26 : 2 Ind. Dec. (N.S.) 528, may perhaps point to the opposite conclusion. The policy of the Legislature is obvious. The substance of the matter is that for the purpose of ascertainment of the Court-fee payable on the application for review, the application relates back to the plaint or memorandum of appeal, as the case may be; the amount is levied in a fixed proportion, independent of the scope of the application for review. To put the matter differently as soon as a suit has been instituted, the amount of Court-fee payable on a possible application for review of the prospective judgment in the suit becomes fixed.
13. We may note that the Assistant Government Pleader did not formulate the point for decision accurately when he stated that the question is, whether the case before us is excluded from the operation or the amending Statute. The real question is, does the amending Statute affect the decision of the question. The answer, in our opinion, must be in the negative; and we are supported in this view by two additional considerations. In the first place, the true construction of Articles 4 and 5 must be determined irrespective of the amending Statute which makes no reference to them. These articles found a place in the Court Fees Act as framed in 1870; and the intention of the Legislature as expressed in the language used, cannot obviously be affected by the supposed object of the framers of the amending Statute of 1922. There is nothing to show that the framers of the Statute in 1870 anticipated and kept in view the contingency which has now arisen; there is equally nothing in the amending Statute to indicate that the legislators of 1922 realised and provided for this case. Section 17 of Act IV of 1922 B.C. which was interpreted in Thaddeus Nahapie v. Secretary of State for India in Council 81 Ind. Cas. 751 : 39 C.L.J. 209 clearly does not advance the contention of the Assistant Government Pleader; on the other hand the decision in Taraprasanna Chongdar v. Nrisinha Murari Pal 81 Ind. Cas. 763 : 39 C.L.J. 212 : 51 C. 216 : 28 C.W.N. 683 militates against his argument. In the, second place, we must bear in mind, the elementary rule that, although as pointed out in Inland Revenue Commissioners, v. Oliver (1909) A.C. 427 : 78 L.J.P.C. 146 : 101 L.T. 140 : 53 S.J. 649 : 25 T.L.R. 707 provisions in fiscal Statutes are not to be so construed as to furnish a chance of escape and a means of evasion, a fiscal Statute must be strictly construed, and liability or additional liability cannot be imposed on the, subject except by clear and unambiguous terms. See Stockton & Darlington, Railway Company v. Barret (1844) 11 Cl. & F.590 at p. 602 : 8 Soott. N.R.641 : 8 E.R. 1225 : 7 Man. &G.; 870 : 65 R.R. 261, Partington v. Attorney-General (1869) 4 H.L. 100 : 38 L.J. Ex. 205 : 21 L.T. 370, Cox v. Rabbits (1878) 3 A.C. 473 : 47 L.J.Q.B. 385 : 38 L.T. 430 : 26 W.R. 483, Pryce v. Monmouthshire Ry. and Canal Co. (1879) 4 A.C. 197; at p. 202 : 49 L.J. Ex. 130 : 40 L.T. 630 : 27 W.R. 666, Oriental. Bank Corporation v. Wright (1880) 5 A.C. 842 at p. 856 : 50 L.J.P.C. 1 : 43 L.T. 177, Tennant v. Smith (1892) A.C. 150 at p. 154 : 61 L.J.P.C. 11 : 66 L.T. 327 : 56 J.P. 596, Secretary of State for India v. Scoble, (1903) A.C. 299 : 72 L.J.K.B. 617 : 80 L.T. 1 : 51 W.R. 675; Deputy Commissioner of Singhbhum v. Jagadish Chandra Deo, Dhabal Deb 62 Ind. Cas. 513 : 6 P.L.J. 411 : 2. P.L.T. 683 and Raj Rajeswari Jiu v. Gati Krishna Chakrabarti 82 Ind. Cas. 292 : 39 C.L.J. 217. From whatever point the question may be viewed, there is thus no escape from the conclusion that neither under the Court Fees Act as originally framed in 1870 nor under the Court-Fees Act as amended in 1922, can a petitioner for review of judgment be called upon to pay Court-fee on the basis of the fee which would be payable on the plaint or memorandum of appeal if it were to be filed on the date of the application for review. The amount must be calculated on the basis of the fee leviable (which, in the normal course, of events, is the fee actually levied) on the plaint or memorandum of appeal according to the law in force when the plaint or memorandum is filed in Court. Tested in the light of this principle, the application in the present case must be deemed to bear the correct Court-fee and must accordingly be heard on the merits.
14. To appreciate the ground for review, it is essential to re-call the relevant facts which are set out in the following passage of our judgment:
The subject-matter of the litigation is a tract of land, measuring about 30 bighas, described in Schedule A to the plaint. The land belonged' admittedly to the Sahas, who executed, a mortgage in favour of Malik on the 29th September, 1900. The mortgagee sued to enforce his security and obtained a decree on the 27th September, 1902. At the execution sale which followed in due course, on the 14th May, 1907, Samalka became the purchaser. He obtained a sale certificate on the 28th April 1903. Samalka, it is said, was the nominal purchaser and bought in the property, one-third for the benefit of Ramdeo and two-thirds for the benefit of Rooya. On the 3rd June, 1910, and on the 8th July, 1910, respectively, Rooya and Ramdeo, the beneficial owners, executed two conveyances in favour of Banerjee. The plaintiff Dutt alleges that he was the real purchaser, and the conveyances were taken by him in the name of Banerjee. It would be a needless digression to narrate the story of the dispute between Dutt and Banerjee as to who became the beneficial owner under the conveyances; it is sufficient to state that Dutt may now be taken to have established his title against Banerjee, who has consequently disappeared from the scene.
15. The history of the title set up by the first defendant who is the rival claimant may now be stated. In 1907, the Chaudhuries, who were the 6-annas co-sharer landlords, obtained against the Sahas a money decree for arrears of rent in respect of the disputed lands. This decree was executed, and at the sale which followed on the 12th May, 1908, the right, title and interest of the judgment-debtors was purchased by one Sarkar. On the 14th October, 1908, the first defendant, Agrani, purchased the property from Sarkar on the basis of an alleged agreement for sale dated 6th July, 1908. In the interval, Sarkar had sold to Bose on the 20th July, 1908, and on the strength of the title so acquired, Bose sold to, the second defendant, Dutt, brother of the plaintiff, on the 25th May, 1910. These transactions, it has been held, do not affect the purchase by Agrani from Sarkar, and were evidently attempts made by the plaintiff to perfect his title by buying in outstanding claims. The controversy between the plaintiff and the first defendant must consequently be determined on the following basis, namely, that the title of the plaintiff is traced to the mortgage sale of the 14th May, 1907 which itself rests on the mortgage of the 29th September, 1900, while on the other hand, the title of the first defendant cannot be traced beyond the execution sale of the 12th May, 1908 when the right, title and interest of the Sahas was exposed for sale. Before that date, the property had already vested in Samalka by virtue of the mortgage sale and could not again be brought to sale at the instance of the co-sharer landlords in execution of the money decree they held against the Sahas; we are consequently not called upon to consider what would have been the position, if the so-called rent-decree were not a mere money decree and had the qualities of a true rent-decree. The inference is thus irresistible, that, prima facie, the first defendant has no title which can be successfully set up against the plaintiff. What then is his answer to the claim? His defence, as will presently appear, is founded on a clerical error which crept into the mortgage instrument.
16. In the schedule to the mortgage bond, the boundaries of the hypothecated property were described as follows:
Within District Hooghly, Sub- Registry Howrah, Station Golabari, Thana Golabari, Pergana Paikan village, Mouza Salikha, lies the Tantipara land measuring about 30 bighas:
East--A place belonging to us called Bajaldanga.
West--Jatadhari Haldar's land.
North--Biswambhar Saha's tank.
South--A place called Barabagan.
'Maliks of 10 annas share are the Raja of Dighapatia and Bibi Jarao Kumari; the annual rent of Rs. 35 is payable to both the Sarkars; and the malik zemindar of 6-annas share is Gurdas Kundu Chowdhury to whom Rs. 40 is payable as annual rent,
It has now transpired that, by mistake, the north and south boundaries were interchanged; what is stated as the north boundary was in fact the south boundary, and what is stated as the south boundary was in fact the north boundary. The scribe evidently made a mistake and wrote north, for south and south for 'north'. This erroneous description of the boundaries was in due course reproduced from the mortgage-deed into the plaint, from the plaint into the decree, and from the decree into the sale certificate. The error appears to have been subsequently discovered, and in the conveyance by Rooya to Banerjee dated the 3rd June, 1910, the correct boundary is given in one portion of the deed, though the incorrect boundary is also set out in the schedule. In the conveyance by Samalka to Banerjee, however, dated 8th July, 1910, the incorrect boundary alone is reproduced. On these facts, the first defendant urges that the plaintiff has not purchased the disputed land at all, and must content himself with such land as may be found to lie within the incorrect boundaries set out in the mortgage deed. It is plain that if this contention prevails, the plaintiff takes nothing. As the result of the further enquiry, which was directed by this. Court on the 9th February, 1921, it has transpired that there is no land which corresponds to the incorrect boundaries. There is no tract of 30 bighas which lies in Tantipara and is bounded on the east by Bajaldanga, on the west by Jatadhari Haldar's land, on the north by Biswambhar Saha's tank and on the south by Barabagan. The fact that there has been a misdescription becomes manifest on a local inspection of the place, and this is confirmed, when the map is examined. There is, further, no plot of 30 bighas except the disputed land which, as stated in the mortgage bond, was held by the Sahas as tenants, 10 annas under Dighapatiya and Jaraokumari and 6-annas under the Chaudhuris, There is thus not the remotest doubt as to the facts. The only question is, whether the first defendant is entitled in law to take advantage of the error in the mortgage deed and thereby to defeat the title of the plaintiff.
It is plain that as the result of the execution sale, which was held on the 12th May, 1908, by the co-sharer landlords on the basis of the money-decree held by them, nothing could vest in the purchaser Sarkar beyond the right, title and interest of the Saha judgment-debtors. The purchaser would thus be bound by the same rule of estoppel as the judgment-debtors.
17. We then proceeded to point out that tested in the light of this principle, the claim of the contesting defendant could not be sustained, because the first defendant was in no better position than the Sahas would have been if they had endeavoured to defeat the plaintiff by reliance on the clerical error in the mortgage bond. In support of the view that the first defendant was in the same position as the Sahas, we referred to the decision of the Judicial Committee in Mohammed Mozuffer Hossein v. Kishori Mohun Roy 22 I.A. 129 : 22 C. 909 : 5 M.L.J. 101 : 6 Sar. P.C.J. 583 : 11 Ind. Dec. (N.S.) 602 (P.C.), where it had been ruled that the purchaser at the execution sale acquires the right, title and interest of the judgment-debtor and does not consequently occupy a position of greater advantage than the judgment-debtor does on the application of the doctrine of estoppel. In support of the view that the mortgagor is bound by the rule of estoppel not to dispute the validity of the mortgage, we referred to the decision in Debendra Nath Sen v. Mirza Abdul Samal 1 Ind. Cas. 264 : 10 C.L.J. 150, where reference is made to Goodtitle v. Bailey (1777) 2 Cowper 597 : 98 E.R. 1260, Doed. Bristow v. Pegge (1785) 1 T.R. 758n; 99 E.R. 1362 and Doed. Ogle v. Vickers (1836) 4 A. & E. 782 : 6 N. & M. 437 : 6 L.J.K.B. 266 : 111 E.R. 977. To these may be added Right v. Bucknell (1831) 2 B. & Ad. 278 at p. 284 : 36 R.R. 563 : 9 L.J. (O.S.) K.B. 304 : 109 E.R. 1146, Doe, v. Stone (1846) 3 C.B. 176 : 17 R.R. 311 : 15 L.J.C.P. 234 : 136 E.R. 71 and Madell v. Thomas (1891) 1 Q.B. 230 at p. 238 : 60 L.J.Q.B. 227 : 64 L.T. 9 : 39 W.R. 280. The two principles just mentioned cannot be and have not been disputed. They form the foundation of another decision whereon we also placed reliance; namely Bepin Krishna Ray v. Jogeshwar Ray 66 Ind. Cas. 345 : 34 C.L.J. 256 : 26 C.W.N. 36, where a mistake was traced from the decree backwards, through successive stages of the judicial proceedings, to the mortgage instrument itself. It has now been argued that we overlooked that the decision last mentioned had no application, because in that case the rights of the parties were governed by Order XXXIV, Rules 4 and 5 of the Civil Procedure Code, 1908, and not by Sections 88 and 89 of the Transfer of Property Act, 1882, which were in force when the transactions in this case took place and must consequently regulate the rights of the parties.
18. It is not disputed that there is a substantial divergence between Section 89 of the Transfer of Property Act and Order XXXIV, Rule 5 of the Civil Procedure Code. Section 89 provided that in a suit for sale, upon the failure of the defendant to pay the dues within the prescribed period, an order absolute for sale shall be made, 'and thereupon the defendant's right to redeem and the security shall both be extinguished.' There was much divergence of judicial opinion as to the precise effect of the concluding clause of Section 89, and it was ruled by a Full Bench of this Court in Bibijan Bibi v. Sachi Bewah 31 C. 863 : 8 C.W.N. 684 that 'thereupon' means 'after sale' and not 'after the order absolute for sale'. This view, however, was overruled by the Judicial Committee in Het Ram v. Shadi Ram 45 Ind. Cas. 798 : 45 I.A. 130 : 40 A. 407 : 28 C.L.J. 188 : 5 P.L.W. 88 : 16 A.L.J. 607 : 35 M.L.J. 1 : 24 M.L.T. 92; (1918) M.W.N. 518 : 20 Bom. L.R. 798 : 22 C.W.N. 1033 : 9 L.W. 550 : 12 Bur. L.T. 73 (P.C.), and the clause itself was left out by the Legislature when Section 89 was replaced by Order XXXIV, Rule 5. But this cannot affect the rights of litigants which accrued when Section 89 was in force. The effect of that section has been considered by_the Judicial Committee in Hetram v. Shadi Ram 45 Ind. Cas. 798 : 45 I.A. 130 : 40 A. 407 : 28 C.L.J. 188 : 5 P.L.W. 88 : 16 A.L.J. 607 : 35 M.L.J. 1 : 24 M.L.T. 92; (1918) M.W.N. 518 : 20 Bom. L.R. 798 : 22 C.W.N. 1033 : 9 L.W. 550 : 12 Bur. L.T. 73 (P.C.), Matru Mal v. Durga Kunwar 55 Ind. Cas 989 : 47 I.A. 71 : 42. A. 364 : 32 C.L.J. 121 : 18 A.L.J. 396 : 38 M.L.J. 419 : 11 L.W. 529; (1920) M.W.N. 338 : 2 U.P.L.R. (P.C.). 75 : 22 Bom. L.R. 553 : 27 M.L.T. 319 : 25 C.W.N. 397 (P.C.) and Sukhi v. Ghulam Safdar Khan 65 Ind. Cas. 151 : 48 I.A. 465 : 43 A. 469; (1921) M.W.N. 445 : 14 L.W. 162 : 26 C.W.N. 279 : 42 M.L.J. 15 : 30 M.L.T. 175 : 24 Bom. L.R. 590: (1922) A.I.R. (P.C.). 11 (P. C).
19. In Hetram v. Shadi Ram 45 Ind. Cas. 798 : 45 I.A. 130 : 40 A. 407 : 28 C.L.J. 188 : 5 P.L.W. 88 : 16 A.L.J. 607 : 35 M.L.J. 1 : 24 M.L.T. 92; (1918) M.W.N. 518 : 20 Bom. L.R. 798 : 22 C.W.N. 1033 : 9 L.W. 550 : 12 Bur. L.T. 73 (P.C.), a property had been twice mortgaged by way of simple mortgage, once in 1880 and again in 1881. Het Ram purchased the property from the mortgagee in 1883. In 1885 the mortgagee of 1880 obtained against the mortgagor and Het Ram a decree absolute for sale under Section 89 of the Transfer of Property Act, 1882. He did not implead the mortgagee under the mortgage of 1881. He took no further steps under the decree and the property was not brought to sale. He died, and was succeeded, to by Het Ram as his heir. In 1910 the mortgagee under the mortgage of 1881 instituted the suit. It was held that Het Ram could not set up the mortgage of 1880 as a shield, because the decree of 1885 was (1) barred by limitation, (2) inoperative as against, the plaintiff who had, not been made a party to the suit and because the mortgage itself was gone, because of the terms of Section 89 of the Transfer of Property Act, 1882.
20. In Matru Mal v. Durga Kunwar 55 Ind. Cas 989 : 47 I.A. 71 : 42. A. 364 : 32 C.L.J. 121 : 18 A.L.J. 396 : 38 M.L.J. 419 : 11 L.W. 529; (1920) M.W.N. 338 : 2 U.P.L.R. (P.C.). 75 : 22 Bom. L.R. 553 : 27 M.L.T. 319 : 25 C.W.N. 397 (P.C.) a property had also been the subject of two mortgages of 1872 and 1879 respectively. The mortgagee of 1872 obtained in 1884 a decree for sale under the same Section 89 of the Transfer of Property Act, 1882, but, omitted to implead the second mortgagee. A lady who was an assignee of the second mortgage raised suit in 1909. The owner resisted the decree unless he was paid the whole amount due under the first mortgage with interest calculated at the rate stipulated therein. The plaintiff offered to pay the amount under the decree of 1884, but refused to, pay the amount of the mortgage so calculated. The Subordinate Judge gave effect to, the contention of the owner. The High Court altered the decree, and gave effect to the offer of the plaintiff. The owner then appealed. The Board adhered to the judgment of the High Court. The Judicial Committee, pressed with 'the decision in Umes Chunder Sircar v. Zahur Fatima 17 I.A. 201 : 18 C. 164 : 5 Sar. P.C.J. 507 : 9 Ind. Dec. (N.S.) 110 (P.C.), pointed out that at the time when the High Court delivered judgment, the case of Het Ram v. Shadi Ram 45 Ind. Cas. 798 : 45 I.A. 130 : 40 A. 407 : 28 C.L.J. 188 : 5 P.L.W. 88 : 16 A.L.J. 607 : 35 M.L.J. 1 : 24 M.L.T. 92; (1918) M.W.N. 518 : 20 Bom. L.R. 798 : 22 C.W.N. 1033 : 9 L.W. 550 : 12 Bur. L.T. 73 (P.C.) had not been before the Board. That case decided that an order made under Section 89 of the Transfer of Property Act, 1882 (Act IV of 1882), for the sale of mortgaged property, has the effect of substituting the right of sale thereby conferred upon the mortgagee for his rights under the mortgage and the latter rights are extinguished. When the decree or order for sale in the case of Umes Chunder Sircar v. Zahur Fatima 17 I.A. 201 : 18 C. 164 : 5 Sar. P.C.J. 507 : 9 Ind. Dec. (N.S.) 110 (P.C.) was made, the Transfer of Property Act, 1882, had not been passed and the procedure prescribed by that Act for suits for sales under that Act did not exist; that case was decided on the law as it then stood. The view thus adopted by the Judicial Committee fits in with the pronouncement in Sundar Koer v. Rai Sham Krishen 34 I.A. 9 : 31 C. 150 : 5 C.L.J. 106 : 4 A.L.J. 109 : 9 Bom. L.R. 304 : 11 C.W.N. 249 : 17 M.L.J. 43 : 2 M.L.T. 75. (P. C), where Lord Davey observed that, after the expiration of the period of grace, if the property should not be redeemed, the matter would pass from the domain of contract to that of judgment and the rights of the mortgagee would thenceforth depend, not on the contents of his bond, but on the directions in the decree.
21. In Sukhi v. Ghulam Safdar Khan 65 Ind. Cas. 151 : 48 I.A. 465 : 43 A. 469; (1921) M.W.N. 445 : 14 L.W. 162 : 26 C.W.N. 279 : 42 M.L.J. 15 : 30 M.L.T. 175 : 24 Bom. L.R. 590: (1922) A.I.R. (P.C.). 11 (P. C) Lord Dunedin pointed out that Order XXXIV, Rules 3 and 5 of the Code of Civil Procedure, 1908, which now govern final decrees for foreclosure and sale, do not provide that alter a decree thereunder the mortgage security is extinguished, as was prescribed by Section 89 of the Transfer of Property Act in the case of a sale decree made under that section. On this ground, the decisions in Het Ram v. Shadi Ram 45 Ind. Cas. 798 : 45 I.A. 130 : 40 A. 407 : 28 C.L.J. 188 : 5 P.L.W. 88 : 16 A.L.J. 607 : 35 M.L.J. 1 : 24 M.L.T. 92; (1918) M.W.N. 518 : 20 Bom. L.R. 798 : 22 C.W.N. 1033 : 9 L.W. 550 : 12 Bur. L.T. 73 (P.C.) and Matru Mal v. Durga Kunwar 55 Ind. Cas 989 : 47 I.A. 71 : 42. A. 364 : 32 C.L.J. 121 : 18 A.L.J. 396 : 38 M.L.J. 419 : 11 L.W. 529; (1920) M.W.N. 338 : 2 U.P.L.R. (P.C.). 75 : 22 Bom. L.R. 553 : 27 M.L.T. 319 : 25 C.W.N. 397 (P.C.) were distinguished. The inference follows that the law now under the Code of Civil Procedure, 1908, remains as it certainly was before the Transfer of Property Act, 1882 as expounded and applied in Sundar Koer v. Rai Sham Krishen 34 I.A. 9 : 31 C. 150 : 5 C.L.J. 106 : 4 A.L.J. 109 : 9 Bom. L.R. 304 : 11 C.W.N. 249 : 17 M.L.J. 43 : 2 M.L.T. 75. (P. C).
22. In the case before us, the mortgage decree was made on the 27 th September 1902 and the execution sale thereunder took place on the 14th May, 1907. Section 89 of the Transfer of Property Act was in force till the Code of Civil Procedure, 1908 came into operation on the first day of January 1909. The rights of the parties must consequently be determined with reference to Section 89 of the Transfer of Property Act and not Order XXXIV, Rule 5 of the Civil Procedure Code. The decision in Bepin Krishna Ray v. Jogeshwar Ray 66 Ind. Cas. 345 : 34 C.L.J. 256 : 26 C.W.N. 36 is consequently distinguishable. There the mortgage decree was made on the 16th December 1909, and the sale in execution was held on the 18th September, 1911. The rights of the parties thus fell to be determined only with reference to Order XXXIV, Rule 5 Civil Procedure Code. In addition to this circumstance, the error in the mortgage instrument was discovered before the sale was completed; and, a suit was instituted for rectification of the mortgage, before the sale could be held again. We must accordingly consider, whether in view of Section 89 of the Transfer of Property Act as explained by the Judicial Committee in Het Ram v. Shadi Ram 45 Ind. Cas. 798 : 45 I.A. 130 : 40 A. 407 : 28 C.L.J. 188 : 5 P.L.W. 88 : 16 A.L.J. 607 : 35 M.L.J. 1 : 24 M.L.T. 92; (1918) M.W.N. 518 : 20 Bom. L.R. 798 : 22 C.W.N. 1033 : 9 L.W. 550 : 12 Bur. L.T. 73 (P.C.) and Matru Mal v. Durga Kunwar 55 Ind. Cas 989 : 47 I.A. 71 : 42. A. 364 : 32 C.L.J. 121 : 18 A.L.J. 396 : 38 M.L.J. 419 : 11 L.W. 529; (1920) M.W.N. 338 : 2 U.P.L.R. (P.C.). 75 : 22 Bom. L.R. 553 : 27 M.L.T. 319 : 25 C.W.N. 397 (P.C.), the plaintiff can establish, as against the defendant, that there was an error in the description of the property and is entitled to succeed on that footing.
23. The defendant has strenuously contended that under Section 89 of the Transfer of Property Act, as soon as the order absolute for sale was made, the security, was extinguished, and the relative rights of the mortgagor and mortgagee were thenceforth regulated by the decree. This may be conceded. But it does not follow that the mortgagee became thereby debarred from proving that the description of the property mentioned in the schedule to the decree itself was erroneous. The petitioner has contended in substance that the effect of Section 89 is to, place at the stage of the decree, an impassable barrier across the path of enquiry from the sale certificate backwards to the mortgage instrument. The question we have to solve is, what is the property covered by the sale certificate, which has passed into the hands of the plaintiff. Enquiry has elicited two facts, namely, first, that there is no property in existence which corresponds to the property described in the schedule to the sale certificate and the decree; and secondly, that if the northern and southern boundaries be interchanged, there is a property of the judgment-debtor which fits in with that description in every other respect to the minutest detail. No legal principle has been brought to our notice which, on these facts, prevents the Court from granting relief as among the decree-holder, the auction-purchaser and the judgment-debtor. What is essentially requisite is the rectification of the boundaries in the schedule to the sale certificate. For this purpose, it is not material that we should go back, behind the decree to the mortgage instrument itself. The clerical error becomes apparent on the result of the local enquiry held on the basis of the boundaries in the sale certificate. The investigation of the proceedings in the suit itself, antecedent to the decree, only furnishes a historical explanation, as it were, how the error arose. But there can be no question that there is an error in the sale certificate, and, in our opinion, the Court has ample authority as a Court of justice, equity and good conscience to would the relief accordingly as between the original parties or their representatives in interest. In this view, it is needless to consider the scope of the questions which may be properly raised on an application for review of judgment as explained by the Judicial Committee in Chhajju Ram v. Neki 72 Ind. Cas. 566 : 49 I.A. 144 : 36 C.L.J. 459 : 30 M.L.T. 295 : 26 C.W.N. 697 : 41 P.L.R. 1922 : 3 P.L.T. 435; (1922) A.I.R. (P.C.) 112 : 16 L.W. 37 : 17 P.W.R. 1922 : 3 L. 127 : 43 M.L.J. 332 : 24 Bom. L.R.1238 : 4 U.P.L.R. (P.C.) 99 (P. C).
24. The result in that the Rule is discharged with costs. We assess the hearing fee at two gold mohurs.