LANGAT SINGH Vs. JANKI KOER

JUDGEMENT

(1.) We are invited in this Rule, to set aside an order by which the Court below has amended a decree made on the 14th December, 1901. The order of the Subordinate Judge is assailed on the ground that it was made without jurisdiction, inasmuch as two previous applications, similar in scope and character to the present, had been refused. The circumstances under which the order in question has been made may be briefly recited. In 1899, Babu Shyam Sivendra Shahi, husband of the sister of Maharajah Harendra Kishore Singh of Bettia, commenced an action against Maharani Janki Koer for recovery of jewelleries and other valuable articles, alleged to be the property of his deceased wife. The matters in controversy in the suit were referred to two arbitrators, Mr. Hall and Babu Jagneshwar Prasad Singh. The arbitrators were not unanimous, and gave divergent awards on the 13th and 11th July, 1901. The matter was thereupon referred, in terms of the submission, to Mr. Grouse, Collector of Saran, who made his award on the 7th September, 1901. The Subordinate Judge accepted the award of the umpire and directed on the 22nd November, 1901, that a decree be drawn up in accordance therewith. When the decree was drawn up, however, it stated that the claim of the plaintiff was decreed as per award of the arbitrators and the umpire in the manner specified. It is necessary to explain at this stage that one of the arbitrators, Mr. Hall, in his award, made mention of a Hindi list (Exhibits B to B7) of the articles which Maharani Janki Koer admitted to have received from Benares, where the wife of the plaintiff had died. A translation of this list was attached to the written statement and was called list A. The other arbitrator, Babu Jagneshwar Singh, mentioned three lists, A, B and C. Twelve other lists appear to have been prepared (Exhibits A1 to A12) which, it is said, merely enumerated articles mentioned in the Hindi list (Exhibits B to B7) or in the English version thereof (Exhibit A). The umpire allowed the plaintiff properties included in the Hindi list (Exhibits B to B7 ). When the decree in the suit came to be drawn up, it is asserted by the defendant, a confusion was made between the different lists, and properties were mentioned twice as if they were distinct and separate. This error, it is suggested, was due to the fact that although the Subordinate Judge had passed judgment in accordance with the award of the umpire, the decree, as drawn up, was on the basis of the award of the umpire as also those of the arbitrators who had recorded divergent awards. This decree was drawn up on the 14th December, 1901. In 1902, the decree-holder applied for delivery of the articles both of list A and of lists A1 to A12 as if they were distinct articles. The result was that on the 26th November, 1902, the judgment-debtor applied for amendment of the decree. On the 7th February, 1903, the Subordinate Judge refused the application on the ground that it had not been explained to him how the decree was contrary to the judgment. It has been stated in the affidavit filed on behalf of the judgment-debtor in this Court, that this arose from the circumstance that the proceedings had been transferred from Motihari to Chapra, and the new pleader at the latter Court had no opportunity allowed to him to receive instructions from the judgment-debtor. On that very date, the judgment- debtor applied for a review of the order of dismissal, but on the 16th May the application for review was refused on the ground that the successor of the Subordinate Judge who had made the order was not competent, to review it. Thereupon, on the 21st May, 1903, the judgment- debtor presented a fresh application for amendment. That application was dismissed on the 12th December, 1903, because in the opinion of the Subordinate Judge an amendment was unnecessary. He held in substance that the enumeration of the two sets of duplicate lists in the decree was a mere surplusage, not calculated to mislead anybody. The decree-holder thereafter on the 10th September, 1904, applied for execution of the decree. The Subordinate Judge held on the 21st August, 1905, that the decree-holder was entitled to the articles in both sets of lists or their value, though he was of opinion that one set of lists was merely a duplicate of the other and only one set of articles was in existence. The Subordinate Judge came to this remarkable conclusion, because he felt himself bound by the decision in the previous execution case as to the meaning of the decree, on the principle explained by the Judicial Committee in Mungul Pershad Dichit v. Grija Kant Lahiri (1881) I.L.R. 8 Calc. 51. and Ram Kirpal Shukul v. Rup Kuari (1883) I.L.R. 6 All. 269 : L.R. 11 I.A. 37. The Subordinate Judge further held that although the interpretation of the lists accepted by his predecessor was correct on the facts, yet as the decree had not been amended, he was powerless to do justice between the parties. On the day following the delivery of this judgment, the judgment- debtor presented a fresh application for amendment of the decree. On the 22nd November, 1905, the judgment-debtor also lodged an appeal in this Court against the order of the Subordinate Judge in the execution case. The result was that the hearing of the application for amendment was adjourned pending the hearing of the appeal by this Court. On the 23rd January, 1907, a Divisional Bench of this Court (Mitra and Caspersz, JJ.) dismissed the appeal. The learned Judges held that it was not competent to the execution Court to ignore the order of the 26th November, 1902, and that the only remedy of the judgment-debtor was either to have the decree amended or a proper decree drawn up. The application of the judgment- debtor made on the 22nd August, 1905, which had so long awaited the decision of the High Court in the execution appeal, was now taken up, but on account of circumstances over which the parties had no control, the matter could not be considered till the 16th March, 1911. On that date, the Subordinate Judge granted the application for amendment and directed that the words "arbitrators and" and "lists A1 to A12" be expunged. We are now invited by an assignee of the decree, who was made a party to the proceedings in the Court below and who is now the decree-holder for all practical purposes, to discharge this order on the ground that, as two successive applications for amendment of the decree had been refused, it was not competent to the Subordinate Judge to entertain a third application in the same matter. This position has been strenuously controverted on behalf of the judgment-debtor, and it has further been argued that as the decision of the Subordinate Judge is right on the merits and has done justice long deferred, this Court ought not to interfere in the exercise of its revisional powers. It has finally been suggested that even if the decision was open to attack on the merits, it could at best be treated as erroneous in law, and consequently not liable to be reviewed by us in the exercise of our revisional powers.

(2.) The question raised as to the competency of a Court to entertain successive applications for amendment of a clerical or arithmetical mistake in a decree or of error arising therein from any accidental slip or omission is apparently of first impression in so far as this Court is concerned. It has been argued by the learned vakil for the judgment-debtor that Section 13 of the Civil Procedure Code of 1882 has no application to a case of this character, inasmuch as an application for amendment of a decree can in no sense be treated as a "suit" within the meaning of Section 13. He has placed reliance, in support of this view, upon the decision in Eliza Smith v. Secretary of State (1878) I.L.R. 3 Calc. 340 where an application under Section 63 of the Administrator-General s Act (II of 1871) was deemed to be barred by the disposal of a former application in the same matter, because such application was of the nature of a suit within the meaning of tile Civil Procedure Code. It may be conceded that successive, applications for amendment of a decree are not barred by Section 13 of the Code of 1882, because an application for amendment is not a suit within the meaning of that section. It does not follow, however, that if an application for amendment has been heard and disposed of on the merits, a subsequent application may be maintained in the same matter. The subsequent application may be barred, not upon Section 13, but upon general principles of law. The decision of their Lordships of the Judicial Committee in Ram Kripal Shukul v. Rup Kuari (1883) I.L.R. 6 All. 269 : L.R. 11 I.A. 37 and Beni Ram v. Nanhu Mal (1884) I.L.R. 7 All. 102 : L.R. 11 I.A. 181 indicate that an interlocutory judgment may be as binding upon the parties as a final judgment, on the principle that if it were not binding there would be no end to litigation. When, therefore, upon an application for amendment of a decree there has been an adjudication on the merits, the view may well be maintained that the decision is conclusive between the parties, notwithstanding the inapplicability of Section 13 of the Code of 1882. Different considerations, however, obviously arise when an application for amendment, of a decree has been dismissed without adjudication on the merits, either because of default of the petitioner or because the Court thought that an amendment was needless. The question arises, whether there is any statutory provision or recognised principle of law upon which a second application ought not to be entertained under circumstances like these. It is obvious that Section 102 of the Code of 1882 does not by its terms present a bar in cases of this description. On the other hand, instances are by no means rare in which successive applications have been allowed in matters in which there is no statutory bar, provided there has been no adjudication on the merits upon a previous application. In Thakur Pershad v. Sheikh Fakirullah (1894) I.L.R. 17 All. 106 : L.R. 22 I.A. 44 it has been ruled by the Judicial Committee that the mere fact that an application for execution of a decree had been dismissed for default did not bar a subsequent application: see also Asim Mandal v. Raj Mohan Das (1910) 13 C.L.J. 532. In Ramani Debi v. Kumud Bandhu Mukerjee (1910) 12 C.L.J. 185 it was ruled by this Court that the dismissal for default of an application, for probate does not debar a second application for probate. The cases of Nusseerooddeen Khan v. Indur Narain Chawdhry (1866) B.L.R. Sup. Vol. 367 : 5 W.R. 93 and Gobinda Ram Mondal v. Bhola Nath Bhatta (1888) I.L.R. 15 Calc. 432 furnish instances of cases in which a second application for review was entertained after a previous application for review had been made and rejected. A similar doctrine is recognised in the decision of this Court in Mussummut Gulab Koer v. Badshah Bahadur (1909) 10 C.L.J. 420, 447 where it was ruled that a suit might lie to set aside a consent decree on the ground of fraud, although an application for review on the same ground had been unsuccessful. The principle which underlies these decisions militates against the view that an application for amendment of a decree cannot be entertained because a previous application has been dismissed for default or as superfluous. Indeed, the learned Judges of the Madras High Court in Jivraii v. Pragji (1886) I.L.R. 10 Mad. 51 assumed that if an application for amendment has been dismissed for default there is nothing to prevent the Court from hearing another application in the same matter. In our opinion, this view is sound on principle. The position is substantially strengthened if we remember that, apart from statutory provisions, the Court has inherent power to vary or amend its own decree or order, so as to carry out its own meaning. As was observed in Mellor v. Swire (1885) 30 Ch. D. 239 when a Court does so, it merely exercises a power to correct a mistake of its ministerial officer by whom the decree or order was drawn up, for it is incumbent on the Court to insist that the decree drawn up in its office should correctly express the judgment of the Court: In re Saint Nazaire Co. (1879) 12 Ch. D. 88, Preston Banking Co. v. Allsup [1894] 1 Ch. 141. To the same effect are the emphatic observations of Lord Penzance in Lawrie v. Lees (1881) 7 App. Cas. 19 and of Lord Watson in Hattnm v. Harris [1892] A.C. 547 that every Court has the power to vary the order drawn up mechanically in its office, so as to carry out its own meaning and to brings the record into harmony with the order which the Judge obviously meant to pronounce. The same principle has been recognised in judicial decisions in this country: Paramesh Raya v. Sesha Giriappa (1899) I.L.R. 22 Mad. 364 Toona v. Kurreemun (1886) 6 W.R. (Mis.) 31. It has further been held that such power of amendment may be exercised at any time, and it was ruled in Shivapa v. Shivpanch Lingapa (1886) I.L.R. 11 Bom. 284 that an application under Section 206 of the Code of 1882 was not governed by any limitation and could be made at any time the errors in the decree were discovered. In England, amendments have been allowed even after the lapse of many years from the date when the decree was drawn up, on the principle stated by Lord Macnaghten in Hatton v. Harris [1892] A.C. 547, 564 that lapse of time has nothing to do with the question of amendment: see also Shipwright v. Clements (1890) 38 W.R. (Eng.) 746 and Loughrey v. Swan (1889) 23 L.T.R. Ir. 54. It is obvious, therefore, that the power to amend a decree so as to correct a clerical or arithmetical mistake therein or an error arising from an accidental slip or omission is inherent in every Court and may be exercised at any time the error is discovered, although the Court cannot exercise such power unless the error is of the description mentioned in Section 206 of the Code of 1882 Rajah Katagiri Venkata Subbamma Roy v. Rajah Vellanki Venkatrama Rao (1899) I.L.R. 24 Mad. 1 : L.R. 27 I.A. 197 and although the Court may deem it inexpedient or inequitable to exercise its powers where third parties have acquired rights under the erroneous decree without a knowledge of the circumstances which would tend to show that the decree was erroneous: Hatton v. Harris [1892] A.C. 547, 564. This principle is manifestly inconsistent with the position that because an application for amendment has been dismissed for default, or as superfluous, the Court is powerless to set matters right and to rectify its own records upon a subsequent application by the party interested. We are not much impressed by the argument that an unscrupulous litigant may, time after time, present applications which he has no serious intention to prosecute. As pointed out in Ramani Debi v. Kumud Bandhu Mookerjee (1910) 12 C.L.J. 185, 191 the danger apprehended may easily be avoided, if upon dismissal of a frivolous application for amendment for default, a suitable order for colts of a deterrent character is made in favour of the party sought to be harassed: or, again, as explained in Grepe v. Loam (1887) 37 Ch. D. 168 the Court may in its discretion refuse to entertain an application for amendment presented after repeated frivolous applications of a similar character by the same party. In the case before us, however, no such consideration obviously arises. Ever since the decree was drawn up on the 14th December, 1901, the judgment-debtor has persistently endeavoured to get the decree amended. The decree-holder has with equal obstinacy resisted the applications on grounds of the most unsubstantial character, and the Courts successively called upon to deal with the matter have displayed a singular adherence to technicalities, regardless of the true merits of the case, which have not been by any means difficult to discover. The result has been that a decree erroneously drawn up on the 14th December, 1901, was not amended till the 16th March, 1911. It is a matter of regret, no less than surprise, that such delay should have been possible in a case of this description.

(3.) The learned Counsel for the petitioner has contended upon the authority of the decision in Hatton v. Harris [1892] A.C. 547 and Stewart v. Rhodes [1900] 1 Ch. 386 that it is inequitable that an amendment should be allowed at this distance of time to the prejudice of the assignee of the decree. We are not satisfied by any means that the principle invoked, namely, that a Court will not amend a decree to the prejudice of third persons who have acquired interests for value, has any application to cases of assignments of decrees, and if the question arose for consideration, we should have to examine the validity of the contention of the opposite party that the doctrine does not apply, because an assignee of a decree takes subject to the equities between the assignor and the judgment-debtor: see Monmohan Karmokar v. Dwarka Nath Karmokar (1910) 12 C.L.J. 312, 321. The question suggested, however, was not propounded in the Court below, and we have no finding by the Subordinate Judge that the assignee took without notice of the claim for amendment. On the other hand, there is good reason for the suggestion that the assignee had notice. The first application for amendment was made as early as the 26th November, 1902; since then, the matter has been continuously before the Court in one form or another, and the application for amendment, which has now been granted, has been pending ever since the 22nd August, 1905. The assignment of the decree, we are informed, was made so late as the 16th October, 1908, although it is said that as early as 20th December, 1901, the assignee had acquired some interest (not explained) in the decree. But he was a party to the appeal in the High Court and must have been aware of the proceedings for amendment. It is perfectly sound doctrine that all persons who are not parties to the action, and who have acquired interests, based on the existing state of the record, acting in good faith and being purchasers for valuable consideration, without notice, actual or implied, of the existence of the matters, evidence of which has been supplied by the amendment, are not prejudiced thereby, unless they have been accorded a hearing and the Court has determined that they have no such equities as entitle them to be exonerated from the effect of the amendment. The case before us is, however, obviously not of the description to which this salutary principle can have any application.