Case: Samarendra Nath Sinha &amp; Anr Vs. Krishna Kumar Nag

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. 15. The second contention is based on the observations of Lord Herschell in Hatton v. Harris, 1892 AC 547 at p. 558 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 show 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." 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 Herschells 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 1892 AC 547 (supra) 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 rejected. 16. 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 59-A 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 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. Monohur, (1888) 15 Ind App. 97 (PC)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, (1885) 12 Ind App 171 (PC) and Motilal v. Karrabuldin, (1897) 24 Ind App 170 (PC). 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 imply 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 questions of redemption and to allow the respondent to participate in proceedings to amend the said preliminary decree.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]7. It is manifest that the High Courts 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 finally decree. There can be no dispute also that the question whether the appellant who was the auction-purchaser pendente 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 Courts judgment specifically directed it do deal with the case in accordance with the directions contained in the said judgment. The judgment and decree of the High Court thus, besides settings 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 mortgaged propertyThe 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 on their predecessor-in-title would not aware of his purchase and therefore could not implead in the suit or in the appeal. The respondent filed his appeal against the said final decree and two questions arose 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 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 competent14. 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 not the decree could be corrected and the obvious remedy would be by way of an appealIt 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 Herschells 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 1892 AC 547 (supra) 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 rejected16. 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 59-A 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 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. Monohur, (1888) 15 Ind App. 97 (PC)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, (1885) 12 Ind App 171 (PC) and Motilal v. Karrabuldin, (1897) 24 Ind App 170 (PC). 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 imply 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 questions of redemption and to allow the respondent to participate in proceedings to amend the said preliminary decree9. In our opinion, these decisions cannot help Mr. Chatterjee as the position here is not the same as in those two decisions11. 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 intention12. 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 instalments. 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 repeatedly in the preliminary decree and their error was not even noticed by the High Court when it dismissed Hazras 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 respondents 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 judgment and the preliminary decree and pass a proper final decree for foreclosure as intended by it.