SIR JEHANGIR CAWASJI JEHANGIR Vs. HOPE MILLS LTD

JUDGEMENT

(1.) We are of opinion that the order appealed from ought to be aside.

(2.) A preliminary point has been raised by the learned Counsel for the respondent that no appeal lies from that order upon the ground that it was made under either Section 206 of the Civil Procedure Code or Rule 305 of this Court's Rules.

(3.) In order to bring the order under Section 206 of the Code it is necessary that the application was made to bring the decree into conformity with the terms of the judgment or to correct or rectify a clerical or arithmetical error found in the decree. Now, it is not pretended by the counsel for the respondent that the decree or order was defective on the ground of a clerical or arithmetical error; nor has it been argued that there was any inaccuracy to bring the decree within the terms of Rule 305. What has happened is that while the decree contemplated an account being taken between the parties, it was silent on the question as to how that account was to be taken, whether by the Commissioner or by some person selected by both the parties. It is argued that the omission was due to pure inadvertance, but we do not think we can presume anything of the kind, because, as the learned Advocate General has said, the decree nisi was settled by the solicitors of the parties and they could not have failed to note what the terms they settled would mean.