Samarendra Nath Sinha & ANR Vs.
Krishna Kumar Nag  INSC 245 (1 November 1966)
01/11/1966 SHELAT, J.M.
CITATION: 1967 AIR 1440 1967 SCR (2) 18
R 1970 SC1717 (17) R 1973 SC 569 (15)
Code of Civil Procedure (Act 5 of 1908), ss.
151, 152-Court mistakenly passing preliminary decree for sale in suit for
foreclosure-Subsequently correcting mistake and passing final decree for
foreclosure-Power to correct such error.
Transfer of Property Act (4 of 1882), s. 52Purchase
of mortgaged property pendente life-Applicability of doctrine of lis pendens.
A piece of land with some constructions on it
situated in district Howrah was mortgaged by conditional sale. The mortgage
deed provided that in case of default in payment of the mortgage amount by the
due date the sale would become absolute. Subsequently the mortgagor sold his
interest to H. As the mortgage amount was not paid by the due date the
mortgagee filed a suit for foreclosure which was decreed.
The trial court passed a preliminary decree
ordering that in case the mortgage amount was not paid within six months the
plaintiff would be at liberty to apply for a final decree for sale. H filed an
appeal before the High Court which was dismissed. The final decree framed by
the trial Court in pursuance of the High Court's orders was for foreclosure.
While the above appeal was pending the
respondent in execution of a money decree against H purchased the aforesaid
mortgaged properties and was given possession thereof. However after the final
decree passed by the Court in the mortgage suit the mortgagee was given
possession of the properties. The respondent thereupon filed an application
under O. 21 r. 100 for restoration of possession to him. This application was
rejected by the trial court.
The respondent then filed an appeal against
the final decree in the High Court. His appeal was entertained and the High
Court set aside the trial court's decree on the ground that there was lack of
conformity between the preliminary decree which was for sale and the final
decree which was for foreclosure. The matter was remanded to the trial court
and leave was given to the respondent to participate in the matter. The
appellants who in the meanwhile had purchased the mortgagee's interest,
appealed.. with certificate under Art. 133(a) and (b) to this Court.
HELD : (i) The High Court had held that the
respondent had a locus standi in the matter and had directed that he was to be
allowed in the remand proceedings to plead that the final decree should be one
for sale thus reopening the question of redemption of the mortgage which' had
been extinguished by the final decree. The High Court's order as regards these'
matters was certainly a final order and therefore the propriety of the
certificate under Art. 133 granted to the appellants could not be questioned.
[24 A-C] (ii)There is 'an inherent power in the -court which passes the
judgment to correct a clerical mistake or an error arising from an accidental
slip or omission and to vary its judgment so as to give effect to its meaning
On the facts of the present case there could
be little doubt that the court had no occasion to pass a preliminary decree for
sale and that it was through an accidental slip or inadvertence that in 19 the
penultimate part of its judgment the court used the phraseology proper in a
mortgage decree for sale. Once this error had crept in the judgment it was
repeated in the preliminary decree. This being the position the trial court had
the power under s. 151 and s. 152 of the Code of Civil procedure to correct its
own error which had crept in the judgment and the preliminary decree and to
pass a proper final decree for foreclosure as intended by it. [24 E, 25 E, H]
(iii)On the facts of the case it could not be said that the decree represented
a wrong decision of the Court. [26 DE] (iv)The principle of lis pendens applies
even to involuntary alienations like court sales. The respondent having
purchased the mortgaged property while the appeal against the preliminary
decree in respect of the property was pending in the High Court, the doctrine
of lis pendens must apply to his purchase and he was therefore bound by the
result of the suit. [28 B-D] Case law considered.
CIVIL APPELLATE JURISDICTION. Civil Appeal
No. 707 of 1964.
Appeal from the judgment and decree dated
November 12, 1961, of the Calcutta High Court in Appeal from Original decree
No. 285 of 1956.
Niren De, Addl. Solicitor-General, N. R. Basu
Udayaratnam, for the appellants.
P.K. Chatterjee, B. d. Mitra and P. K. Bose,
for the respondent.
The Judgment of the Court was delivered by
Shelat, J. One Sambhu Charan Das and Sannyashi Charan Das owned 2 bighas and 18
cottahs of land with a construction standing thereon, situated in Salkiah,
District Howrah. By a deed of mortgage by conditional sale dated June 2, 1933
the said owners mortgaged the said property to secure repayment of Rs. 2,750
advanced to them by Panchu Gopal Srimani, then a minor through his mother,
Prabhavati Dassi as his certificated guardian. The said mortgage, inter alia,
provided that if the mortgage amount was not repaid by the due date i.e., April
14, 1935 the mortgage would be considered as a deed of absolute sale and the
mortgagee would be entitled to take possession of the property. On June 18,
1934 the mortgagors assigned their right, title and interest in the said
property to one Satchindananda Hazra.
As the said mortgagors or the said Hazra
failed to pay the said mortgage amount on the due date, the mortgagee filed a
suit on July 17, 1945 for enforcement of his rights impleading the two
mortgagors and the said Hazra as defendants. In that plaint the mortgagee
prayed for a decree for Rs. 5,426/10/6, being the amount then due under the
said mortgage and for fixing the time for. payment of the 20 said amount. The
plaint also contained a prayer that on failure to pay the decreetal amount
within the time fixed by the court the right of the defendants to redeem the
mortgage may be annulled and a decree may be passed giving possession of the
mortgaged property." The mortgagors filed a written statement claiming
that they should be permitted to pay the mortgage amount by installments as
provided by the Bengal Money Lenders Act. The said Hazra also filed a written
statement alleging that he was a bona fide purchaser without notice of the said
mortgage. The two mortgagors did not contest the suit and it was only Hazra who
contested it contending also that as the loan under the said mortgage was advanced
by the guardian of the said Panchu, then a minor, without obtaining sanction of
the District Judge, the said mortgage was null and void.
The Trial Court rejected these contentions
and passed a preliminary decree on December 23, 1946. The said decree, inter
alia, provided that the mortgage amount due was Rs.
5,426/10/6 and that if the said amount
together with costs of the suit was not paid by the defendants within six
months from the date of the decree the plaintiff would be at liberty to apply for
a final decree. Though the suit was a foreclosure suit the preliminary decree
passed by the Trial Court was one under O. 34 r. 4(1) of the Code of Civil
Procedure inasmuch as it provided that in default of payment as aforesaid the
plaintiff would be at liberty to apply to the court for a final decree for sale
and that if the sale proceeds on such sale were not sufficient for payment of
the decreetal amount the plaintiff would be at liberty to apply for a personal
decree against the defendants for the balance. Against the said preliminary
decree the said Hazra filed an appeal in the High Court at Calcutta raising two
contentions, (1) that the said mortgage was void on account of sanction not
having been obtained by the guardian of the mortgagee before advancing the said
loan and (2) that he should be permitted to pay the decreetal amount by installments.
The High Court negatived these contentions and by its judgment and decree dated
March 22, 1951 dismissed the said appeal and the suit was sent back to the Trial
Court for passing a final decree.
While the said appeal was pending the
respondent obtained a money decree against the said Hazra and commenced
execution proceedings against him. An attachment was levied on the said
mortgaged property and thereafter on June 23, 1950 the right, title and
interest of the said Hazra was put up for sale. The respondent was the auction
purchaser and the court confirmed the said sale by an order dated February
l5,1951. The said auction sale was in respect of 1 bigha and 2 cottahs out of
the said mortgagee property According to the respondent he was given possession
of the said property on May 3, 1951.
21 On March 1, 1954, the said mortgagee,
Panchu Gopal Srimani, applied for a final decree in the said suit. Pending this
application, he assigned his right in the said decree in favour of the
appellants on May 31, 1954. On July 1, 1954 the appellants applied to the Trial
Court for being substituted in place of the said Panchu Shrimani. The Trial
Court directed notices to be issued on the defendants, that is, the said two
mortgagors and the said Hazra and they having raised no objection the court by
an order dated January 5, 1955 ordered substitution and then passed a final
decree. The said decree, after reciting that the said decretal amount was not
paid within the time appointed by the defendants or any other person entitled
to redeem the said mortgage, provided as follows:"And it is hereby ordered
and declared that the defendant and all persons claiming through or under him are
absolutely debarred and foreclosed of and from all rights of -redemption of and
in the property in the aforesaid preliminary decree mentioned ....
and that the defendant shall deliver to the
plaintiff quiet and peaceful possession of the said mortgaged property."
On April 19, 1955 the appellants applied for and obtained possession of the
said mortgaged property. According to the respondent, however he learnt about
the possession of the said mortgaged property having been delivered to the
appellants for the first time on May 25, 1955 and thereupon filed an
application under O. 21 r. 100 of the Code for restoration of possession to
him. On September 27, 1955 the Trial Court rejected that application. The
respondent then filed on January 3, 1956 a Revision Application against the
said dismissal. On August 23, 1955 the respondent filed a second application
under section 151 of the Code for setting aside the said final decree. On the
same day he also filed an appeal in the High Court being Appeal No. 285 of 1956
against the said final decree but without impleading the said mortgagors or the
said Hazra, who still was partially interested in the equity of redemption in
the said property.
In the meantime, the Trial Court dismissed
the respondent's application under section 151 by its order dated February 14,
1956. The High Court also by its order dated May 12, 1961 discharged Civil Rule
No. 2 of 1956 issued in the revision application filed by the respondent
against the dismissal of his application under O. 21 r. 100.
Appeal No. 285 of 1956 came on for hearing on
May 12, 1961 before a Division Bench of the High Court. The High Court set
aside the final decree observing :
"It is common case that the preliminary
decree was for sale. The prayer by the respondents was for a final decree in
terms of the preliminary decree. This was allowed, but the final decree as
drawn up turned out to be one for 22 foreclosure. It is this dis conformity
between the preliminary decree and the final decree which is being challenged
by the appellant." The High Court ordered "We should in the result
set aside the final mortgage decree and allow the appeal by remitting the
matter back to the Court below to be dealt with in accordance with law. The
appellant is given liberty to participate in the matter." Against the said
judgment and decree the appellants applied for and obtained a certificate under
Art. 133(1)(a) and (b).
It is manifest that the High Court's judgment
meant that the respondent had sufficient interest to maintain the said appeal
and participate in the proceedings before the Trial Court on the said remand
for considering the question whether the said preliminary decree should be
altered or not and if not whether the respondent had still the right to redeem
the said mortgage, though the time for payment fixed under the said preliminary
decree had expired, that is, six months from December 23, 1946, long before the
respondent became a purchaser of part of the said equity of redemption on
February 15, 1951. There is no dispute that the valuation test for a
certificate is satisfied in the present case. The judgment and decree passed by
the High Court is also not one of affirmance as the High Court set aside the
said final decree. There can be no dispute also that the question whether the
appellant who was the auction-purchase respondent lite had the locus standi to
maintain the appeal was finally decided and he was given liberty to participate
in the proceedings for correcting the preliminary decree and was enabled
thereby to contend that he was still entitled to redeem the said mortgage and
retain possession of the mortgaged property. The Trial Court was bound to allow
him to participate in those proceedings as the High Court's judgment
specifically directed it to deal with the case in accordance with the
directions contained in the said judgment. The judgment and decree of the High
Court thus, besides setting aside the said final decree meant that the
respondent had still sufficient interest entitling him to challenge the
appellants' claim to have a final foreclosure decree and to. maintain that the
question of redemption was still open and he had the right to redeem the
Counsel for the respondent however contended
that the certificate granted by the High Court was not competent and was liable
to be vacated as the judgment passed by the High Court was not a judgment,
decree or final order inasmuch as what the High Court had done was only to
remand the case to the Trial Court and the Trial Court had yet to decide the
question whether a final decree for foreclosure should be passed or whether the
final decree should 23 be one for sale enabling the respondent to redeem the
said mortgage. In support of his contention he relied on Sardar Syedna Tahar
Saifuddin Saheb v. State of Bombay(1) where this Court held that the
certificate granted therein was incompetent as it could not be granted in
respect of an interlocutory finding. The order appealed against in that case
was a decision as to the validity of the Bombay Prevention of Excommunication
Act, 1949 (Bombay XLII of 1949). That being one of the several issues the
decision did not dispose of the suit as the rest of the issues still remained
to be tried and it was for this reason that it was held that the said order was
not a judgment, decree or final order. M/s. Jethanand & Sons v. The State
of Uttar Pradesh(2) was again a case of remand directing the Trial Court to
frame fresh issues and give opportunity to the parties to produce evidence. In
fact it was an order for a Trial de nova on fresh pleadings and on all issues
that might arise on such pleadings. Evidently any decision given by the High
Court in the course of its order would not be binding on the Trial Court as the
case had to be tried afresh by it. In these circumstances it was held that the
order of remand was not 'a judgment, decree or final order as it did not amount
to a final decision relating to the rights of the parties in dispute.
In our opinion, these decisions cannot help
Mr. Chatterjee as the position here is not the same as in those two decisions.
The, High Court has given its judgment and in pursuance thereof passed a decree
setting aside the said final decree. If the High Court had held that the
respondent in the circumstances of the case had no right to maintain his
appeal, the final decree would have become a concluded decree and his right of
redemption, if any, would have been totally extinguished. It is true that the
High Court remitted the case to the Trial Court but it was obviously not an order
of remand simpliciter. The decision of the High Court was not on a preliminary
issue leaving undecided other issues to be tried by the Trial Court. It will be
observed that the respondent was not a party to the suit-he could not be
because when the preliminary decree was passed he was not on the scene. Though
he became an auction-purchaser while the appeal against the preliminary decree
was pending, he did not apply for being brought on record. The appellants or
their predecessor-in-title would not be aware of his purchase and therefore
could not implead him in the suit or in the appeal'. The respondent filed his
appeal against the said final decree and two questions arise in that appeal :
(1) whether being a purchaser pendente lite he had locus standi to file an
appeal and challenge the final decree and (2) whether the Trial Court had
jurisdiction to pass the final decree which was not in conformity with the
preliminary decree. The judgment of the High Court is unfortunately laconic and
one wishes that the learned Judges, (1)  S.C.R. 1007. (2)  3 S.C.R.
24 had taken us a little more into confidence
by giving some reasons at least. Nonetheless, it is clear that they decided
both the questions by holding that the respondent had still sufficient interest
in the matter and therefore had locus standi and by setting aside the final
decree and directing the Trial Court to decide the question as to whether it
could correct the said preliminary decree in accordance with the directions
given by them they held that the respondent was entitled to participate in
those proceedings and plead that the final decree should be one for sale and
consequently he was entitled to redeem the said mortgage. There can be no
question that the two questions raised in the appeal before the High Court were
disposed of finally inasmuch as the said final decree was set aside as not
being valid and binding on the respondent and the question of redemption by him
which was extinguished by that final decree was reopened entitling the
respondent to contend that he had the right to redeem and to hold the said
property. In these circumstances the preliminary objection raised by Mr.
Chatterjee cannot be sustained and the certificate must be held to be
On merits, two questions were raised : (1)
whether the Trial Court was competent to pass a final decree for foreclosure
though .the preliminary decree was for sale and (2) whether the respondent had
the right to contend that he was entitled to redeem the said mortgage in view of
the fact that he was the execution purchaser of part of the equity of
redemption pendente lite.
Now, it is well-settled that there is an
inherent power in the court which passed the judgment to correct a clerical
mistake or ,an error arising from an accidental slip or omission and to vary
its judgment so as to give effect to its meaning and intention. "Every
court," said Bowen L. J.
in Mellor v. Swira(1) "has inherent
power over its own records so long as those records are within its power and
that it can set right any mistake in them. An order even when passed and
entered may be amended by the court so as to carry out its intention and
express the meaning of the court when the order was made." In Janakirama
Iyer v. Nilakanta Iyer(2) the decree as drawn up in the High Court had used the
words " mesne profits" instead of "net profits". Infact the
use of the words " mesne profits" came to be made probably because
while narrating the facts, those words were inadvertently used in the judgment.
This court held that the use of the words "mesne profits" in the
context was obviously the result of inadvertence in view of the fact that the
decree of the Trial Court had specifically used the words " net
profits" and therefore the decretal order drawn up in the High Court
through mistake could be corrected under sections 151 and 152 of the Code even
after the High Court had granted certificate and appeals were admitted in this
court before the date of the (1) 30 Ch. 239. (2) A.I.R.
1962 S.C. 633.
25 correction. It is true that under O. 20 r.
3 of the Code once a judgment is signed by the Judge it cannot be altered or
added to but the rule expressly provides that a correction can be made under
section 152. The Rule does not also affect the court's inherent power under
Under section 152, clerical or arithmetical
mistakes in judgments, decrees or orders or errors arising therein from any
accidental slip or omission may at any time be corrected by the court either on
its own motion or on an application by any of the parties. It is thus manifest
that errors arising from an accidental slip can be corrected subsequently not
only in a decree drawn up by a ministerial officer of the court but even in a
judgment pronounced and signed by the court.
As already pointed out, the mortgage in
question was one by conditional sale empowering the mortgagee to take
possession of the mortgage security if the monies due thereunder were not paid
by the due date. The suit filed by the mortgagee was also for a foreclosure
decree. The tenor of the judgment of the Trial Court shows that the court meant
to pass such a foreclosure decree especially as the plaint contained no prayer
for a decree for sale or for a personal decree against the mortgagors or the
said Hazra if the sale proceeds were found insufficient. The written statements
of the defendants did not raise any contention against the mortgagees' right
for a foreclosure decree, their defence being only that they were entitled to
pay the mortgage amount by installments. There can therefore be little doubt
that the court had no occasion to pass a preliminary decree for sale and that
it was through an accidental slip or inadvertence that in the penultimate part
of its judgment the court used the phraseology proper in a mortgage decree for
sale. Once this error had crept in the judgment it was repeated in the
preliminary decree and this error was not even noticed by the High Court when
it dismissed Hazra's appeal and confirmed that decree. The error was later on
noticed by the appellants as is seen from the order passed by the Trial Court
dismissing the respondent's application under section 151 for setting aside the
final decree. That order states that the Subordinate Judge who tried the suit
through oversight passed a preliminary decree for sale overlooking the fact
that it was a suit for foreclosure and possession, that it was also apparent
that this mistake of the Trial Court went unnoticed in the High Court which
confirmed the decree of the Trial Court and "therefore, this court, when
it passed the final decree being apprised of the apparent mistake in the form
of the preliminary decree, corrected the initial mistake and did justice by
passing a final decree for foreclosure and for possession which was -the only
scope of this suit." This being the position the Trial Court had the power
under section 151 and section 152 to correct its own error which had crept in
the Sup. CI/66-3 26 judgment and the preliminary decree and pass a proper final
decree for foreclosure as intended by it.
Mr., Chatterjee, however,, raised two
contentions; (1) that a judgment or decree cannot be varied when it correctly
represents what the court decided though it may be wrongly nor can the
operative or substantive part of the judgment be varied and a different one
substituted and (2) that a judgment or decree cannot be varied where there has
been intervention of rights of third parties based on the existence of the
decree and ignorance of the mistake therein. In such a case the exercise of
power to correct the mistake would be inequitable or inexpedient.
No one can quarrel with these propositions.
But considering the nature of the mortgage, the cause of action and the prayers
in the suit, the absence of any contest as regards that cause of action and the
prayers, and the tenor of the judgment until it came to its penultimate part,
there can be no doubt that the intention of the Trial Court was to pass a
preliminary decree for foreclosure as prayed for and that was what the court
had decided. It was therefore through an accidental slip that in that final
part of the judgment the Subordinate Judge used the phraseology used in a
preliminary decree for sale. Therefore, there is no question of a wrong
judgment having been passed by the Judge or the preliminary decree correctly
representing that which was wrongly decided by the Judge. If that had been so,
neither the judgment nor the decree could be corrected and the obvious remedy
would be by way of an appeal. In Barhamdeo Singh v. Harnam Singh(1) though only
one of the defendants appeared and contested the suit the order made was that
"the suit be decreed with costs." This was allowed to be altered on
the ground that it was contrary to the intention of the court, that such an
intention had to be gathered from the judgment as a whole and that the decree
following the concluding portion of the judgment awarding costs against all the
defendants was not in accord with the true intention of the court.
The second contention is based on the
observations of Lord Herschell in Hatton v. Harris(2) where he stated-"that
there may possibly be cases in which an application to correct an error of this
description would be too late. The rights of third parties may have intervened,
based upon the existence of the decree and ignorance of any circumstances which
would tend to shew that it was erroneous, so as to disentitle the parties to
the suit or those interested in it to come at so late a period and ask for the
correction to be made." (1) 18 C. W. N. 772.
(2)  A.C. 547 at 558.
27 It is true that the respondent purchased
part of the equity of redemption from his judgment-debtor, Hazra, after the
preliminary decree Was passed. It is also true that that decree was not in the
form of a foreclosure decree but of a mortgage decree for sale. But according
to Lord Herschell's observations, the intervening interest of third parties
must be based on the existence of the decree and ignorance of any circumstances
which would tend to show that it was erroneous. No such thing has happened and
indeed it was never the case of the respondent that he purchased the interest
of the said Hazra because he was aware that a preliminary decree for sale has
been passed and that under that decree he would be entitled to redeem the
mortgaged property or that he was ignorant of the mistake in that decree. That
being the position it is difficult to see how the case of Hatton v. Harris()
can apply to the present case. In this view, the Trial Court had the power to
correct the accidental slip which had crept in its judgment and correct that
error by passing the final decree in accordance with its true intention. The
final decree was passed after notice to the mortgagors and the said Hazra and
after hearing them. The respondent was not made a party to that application as
the appellants were never made aware of his purchase. The respondent also had
not cared to be brought on record in substitution of or in addition to the said
Hazra from whom he derived his interest in the equity of redemption. In our
view, both the contentions raised by the respondent in this behalf must be
What then is the position of the respondent
once it is held that the final decree for foreclosure was validly passed by the
Trial Court ? Could he challenge that decree in an appeal against it in the
High Court on the basis that he was entitled to redeem the said mortgage?
Section 91 of the Transfer of Property Act provides that besides the mortgagor
any person other than the mortgagee who has any interest in or charge upon the
property mortgaged or in or upon the right to redeem the same may redeem or
institute a suit for redemption of such mortgaged property. An execution
purchaser therefore of the whole or part of the equity of redemption has the
right to redeem the mortgaged property.
Such a right is based on the principle that
he steps in the shoes of his predecessor-in-title and has therefore the same
rights which his predecessor-in-title had before the purchase. Under section
59A of the Act also all persons who derive title from the mortgagor are
included in the term "mortgagor" and therefore entitled to redeem.
But under section 52 which incorporates the doctrine of lis pendens, during the
pendency of a suit in which any right to an immovable property is directly and
specifically in question such a property cannot be transferred or otherwise
dealt with by any party to the suit or proceeding so as to affect the rights of
any (1)  A.C. 547 at 558.
28 other party -thereto under any decree or
order which may be made therein except under the authority of the court and on
such terms as it may impose. Under the Explanation to that section the pendency
of such a suit commences from the date of its institution and continues -until
it is disposed of by a final decree or order and complete satisfaction or
discharge of such a decree or order has been obtained. The purchaser pendente
lite under this doctrine is bound by the result of the litigation on the
principle that since the result must bind the party to it so must it bind the person
deriving his right, title and interest from or through him.
This principle is well illustrated in
Radhamadhub Holdar v. Monohar(1) where the facts were almost similar to those
in the instant case. it is true that section 52 strictly speaking does not
apply to involuntary alienations such as court sales but it is well-established
that the principle of lis pendens applies to such alienations. (See Nilkant v.
Suresh Chandra(2) and Motilal v. Karrabuldin
(3). It follows that the respondent having purchased from the said Hazra while
the appeal by the said Hazra against the said preliminary decree was pending
in, the High Court, the doctrine of lis pendens must apply to his purchase and
as aforesaid he was bound by the result of that suit. In the view we have taken
that the final foreclosure decree was competently passed by the Trial Court,
his right to equity of redemption was extinguished by that decree and he had
therefore no longer any right to redeem the said mortgage.
His appeal against the said final decree was
misconceived and the High Court was in error in allowing it and in passing the
said order of remand directing the Trial Court to reopen the question of
redemption and to allow the respondent to participate in proceedings to amend
the said preliminary decree.
In the result, we allow the appeal, set aside
the judgment and decree passed by the High Court and restore the judgment and
decree passed by the Trial Court. The respondent will pay the appellants' costs
(1)15 I.A. 97.
(3) 24 I.A. 170.
(2) 12 I.A. 171.