DEVENDRA NARAIN SINGH Vs. SHIVA KUMAR PRASAD SINGH

JUDGEMENT

(1.) This appeal by the decree-holder is directed against the order dated the 20th July. 1967, passed by the Fourth Additional Subordinate Judge, Chapra, in Miscellaneous Appeal No. 119/22 of 1965/66 reversing the order of the Munsif, Third court, in Miscellaneous case No. 18 of 1964 dated the 12th June 1965. In order to appreciate the point for decision in this appeal, it will be necessary to state briefly the facts. The appellant-decree holder executed a decree in Execution case No. 134 of 1961. In that execution, certain properties of the judgment-debtor-respondent were put to sale. The iudgment-debtor deposited Rs. 2958.70 P. by a chalan, and the execution case was disposed of with a note of full satisfaction on the 25th January, 1962. Subsequently, the appellant inspected the record and learnt that there had been a mistake .by the office of the executing court. Some of the decretal amount was left to be calculated, and the interest was not calculated in accordance with law. A part of the cost of the execution was also left out of consideration. The appellant thereafter filed a petition before the executing court under Section 151 read with Order 21 Rule 89 (3) of the Code of Civil Procedure pointing out the above mistakes made by the ministerial officer of the court, and prayed that the execution case may be restored and after rectifying the mistake made in the calculation the said amount be realised from the iudgment-debtor in accordance with law. The application so filed by the appellant save rise to miscellaneous case No. 18 of 1964.

(2.) After hearing the respondent, the executing court allowed the application filed by the appellant acting under its inherent power by order dated the 12th June 1965. Aggrieved by the said! order, the judgment-debtor-respondent filed an appeal, which was registered as Miscellaneous Appeal No. 119/22 of 1965/ 66, as mentioned above. After hearing the parties the appellate court set aside the order passed by the executing court in the said miscellaneous case. Hence this appeal by the decree-holder.

(3.) Learned Counsel, appearing, on behalf of the appellant, has referred to the order dated the 12th June, 1965, passed by the executing court, particularly to paragraphs 5 and 6 of that order, where the learned Munsif has specifically stated that the mistake was committed by the court itself in calculating the exact decretal amount. Learned counsel submitted that in that view of the matter, the appellate court has erred in sett-Ing aside the order of the Munsif. He submitted that a court has ample jurisdiction to rectify its own mistake, and. for the mistake of the court, the parties should not be allowed to suffer.