These are two petitions to revise the order of the District Judge, Eluru in C.M.A No. 123 of 1947 and C.M.A No. 25 of 1948 on his file.

The more material facts are these. On 11-3-1946 the Official Receiver sold the properties of the insolvent in I.P Nos. 21 and 22 of 1933 on the file of the Subordinate Judge, Eluru. One Virabadra Rao the petitioner before me was the successful auction purchaser, the amount of his bid being Rs. 15,500. On 29-3-1946 two creditors of the insolvent named Bapiraju and Viraswami filed I.A No. 320 of 1946 before the Subordinate Judge, Eluru, praying that the sale be set aside. One Chunilal, another creditor of the insolvent, probably entertained fears that Bapiraju and Viraswami might not prosecute their petition diligently and so on 22-12-1946 he applied to be added as the third petitioner in I.A No. 320 of 1946. The petition which Chunilal so filed was numbered as I.A No. 44 of 1947. On 11-2-1947 this I.A No. 44 of 1947 was dismissed because even though his vakil was present the petitioner was absent and no evidence was adduced in support of the allegation that the petitioners in I.A No. 320 of 1946 were not prosecuting their petition with diligence. On 8-4-1947 I.A No. 320 of 1946 was withdrawn and dismissed. Chunilal thereupon filed two appeals before the District Court. One numbered as C.M.A No. 123 of 1947 was against the order dismissing I.A No. 320 of 1946 and the second numbered as C.M.A No. 25 of 1948 was against the order dismissing his own application, I.A No. 44 of 1947.

There is a certain amount of apparent—but as finally appears over apparent—controversy about what happened in the District Court. Nevertheless certain facts are not disputed. The learned District Judge heard arguments in the appeals on 22-6-1949 and reserved judgment. Either on the 24th or on the 25th June—the difference between these dates is immaterial—the appeals were taken up in order to ascertain whether the appellant or anyone else was willing to deposit Rs. 25,000 as his initial bid. Time was extended once and again till 12-8-1949 when one Vagu Venkataswami stated to be the son-in-law of one of the insolvents deposited a sum of Rs. 6,250. The learned District Judge made an order on 12-8-1949 of which the first paragraph runs as follows:

“In view of the deposit made here to prove the bona fides of the contention of the appellant that the sale of the property in question was not for proper price, both sides agree that the appellant should be allowed to be added as a party and given an opportunity to convince the lower Court that the sale is liable to be set aside on this ground. Both sides further agree that I.A No. 320 of 1916 on the file of the lower Court should be restored to the file of the lower Court for disposal on merits. In dealing with it the lower Court will take into consideration that fact that there is a bidder who is prepared to start his bid with Rs. 25,000 as the upset price. Both these appeals, are allowed.”

On behalf of Virabhadra Rao, the petitioner before me, it was strenuously contended that on neither of the two points set out in the order of the learned District Judge now complained of was there the agreement that he asserts there was. An affidavit of the learned vakil who appeared for the petitioner in the District Court was filed in support of the contention. It is stated that it was only because this affidavit was filed that these civil revision petitions were admitted at all. When notice was issued to the opposite side after the admission of these two revision petitions another affidavit from the Advocate who had been appearing for Chunilal in the District Court was also filed. Reading these two affidavits together it appears to me to be reasonably clear that both the parties agreed before the learned District Judge that I.A No. 320 of 1946 on the file of the Sub Court should be remanded to that Court for disposal on the merits, but, it was certainly not agreed that Chunilal should be added as a party.

Mr. Ramachandra Rao for the respondent, however, took the objection that a statement in a judgment or order as to what had taken place in Court is conclusive and cannot be allowed to be controverted by an affidavit or otherwise and that a party who is aggrieved by what he considers a wrong statement in a judgment should apply to the very same Judge by way of review. In support of this position a number of decisions were cited and I shall briefly examine them. The earliest of these is the case reported in Reg. v. Pestanji Dinsha and another (1). In that case there was a controversy whether the learned Judge who presided at the criminal sessions of the Bombay High Court instructed the Jury in a particular manner. The learned Judge positively stated that he had not so instructed the Jury. Dealing with the question whether such a statement could be canvassed Westropp, C.J, observed as follows:

“The statement of the Judge, who presides at a trial, whether it be a in a criminal or civil case, is, as to what has taken place at the trial conclusive. Neither the affidavits of by standers, nor of jurors, nor the notes of Counsel, nor of shorthand writers are admissible to controvert the notes or statement of the Judge: Rex v. Grant(2) Everett v. Youells(3) Gibbs v. Pile (4). And in Reg v. Aron Mellor (5). Coleridge J. at Page 131, says: ‘I apprehend that we are bound to give credence to the statement of the Judge, and to take what the Judge so states to be incontrovertibly the fact. It is suggested this is not a record, but we have no more power of contradicting the statement of a learned Judge reserved for our consideration, than we have the power of contradicting any allegation upon a record; and Martin B. (p. 137) says: ‘We must consider the statement of the Judge as absolute verity, and we ought to take his statement precisely as a record and act on it in the same manner as on a record of Court, which of itself imports absolute verity”.

This judgment puts the law in the strongest possible terms in favour of the contention urged by Mr. Ramachandra Rao. It has long been in our reports and does not appear to have been dissented from.

The second decision in point of time is the one reported in Mirza Shamsher Bahadur v. Munshi Kunj Behari Lal (6). At page 215 the learned Judges stated:

“As to the factum of the admission it is not open to the defendants to challenge the accuracy of the statement contained in the judgment of the District Judge. If the admission was not as a matter of fact made, or if it was substantially different from what it was taken by the District Judge to be, the proper course for the defendants was to apply for a review of judgment because the District Judge and he alone was competent to state with any approach to accuracy, what was the precise admission which had been made before him.”

To the same effect is the decision in Yendluri Nagabhushanam v. Yendluri Jagannaikulu(7) the headnote to which runs as below:

“Where a judgment contains a damaging statement against a party, a statement of an admission purporting to have been made by him, and practically conclusive of the case against him the proper course for him to adopt, if his case is that the statement is erroneous, to apply for a review of judgment, when the matter is fresh in the mind both of the learned Judge who pronounced the judgment and of the practitioners who appeared in the case. He ought to do as soon as he finds out the mistake, and ought not to wait and make the error the ground of an appeal filed long afterwards”.

The decision next cited is that of the Privy Council in Madhusudan Chowdhari v. Chandrabati Chowdrain . At page 442 their Lordships commented on the suggestion that the learned Judges who tried the case might have misunderstood the action of the pleader in the conduct of the case in these terms:

“Their Lordships are quite unable to accept this contention; had there been any mistake in this respect it would have been incumbent upon the appellants, while the matter was still fresh in the minds of the Judges, to have caused their pleader to call the attention of the Court to the fact that the statement made with regard to his conduct was a statement that had been made in error. No such step was taken, and, apart from the argument of counsel, there is nothing before their Lordships to make them think that any such mistake occurred; an affidavit has indeed been filed by a person who said he was present at the trial, that he would certainly have noticed any such admission, that such admission was not made, and that the learned pleader is now unable to recall whether in fact it did or did not occur. After such a lapse of time this is wholly insufficient. ……..”

The last of the decisions read by Mr. Ramachandra Rao is the one reported in Venkatesayya and another v. Mohammad Ghouse Sahib it merely follows the earliest Bombay case [Reg v. Pestanji Dinshaw and another] without much discussion.

Mr. Narasaraju the learned advocate for the petitioner however argued that the law has been stated too rigidly and inflexibly in Reg v. Pestanji Dinshaw and that whatever may be the position according to the English decisions which were relied on in Reg v. Pestanji Dinshaw and another an exception to the rule has been recognised in Indian Courts. He first referred to Hurdayal Singh v. Heeralall a Calcutta case where this law is stated in these terms:

“The rule of law is that a judgment deliberately recording the admission of a pleader must be taken as correct, unless it is contradicted by an affidavit or the judge's own admission that the record he made was wrong”.

On the strength of this observation he contended that it was open to a party to show by affidavit that a statement of fact in a judgment as to what took place in Court was wrong.

Nellavadivu Ammal v. Subramania Pillai is the second case cited by Mr. Narasaraju. In that case Sadasiva Aiyar J. remarked:

“A statement in a judgment as to an admission made before the Court of First instance should not be doubted lightly by the Appellate Court, especially in the absence of fin affidavit by the vakil who appeared in the Court of first instance.”

The words underlined are those on which Mr. Narasaraju placed special emphasis. The third is an unreported case in A.S No. 567 of 1947 on the file of this Court. What happened there was that in view of certain allegations in an affidavit of the concerned Advocate in the Court below, Subba Rao and Somasundaram, JJ. called for a report from the Sub-Judge about what had happened and after considering his report remanded the suit for fresh disposal according to law.

Now, if we examine its raison d'etre the rule that a statement in a judgment as to what happened in Court should not be allowed to be controverted is seen to rest on a number of salutary reasons. One is that to depart from it and to allow such statements when they are deliberately made in judgments to be challenged would be to draw the presiding officers of Courts into the controversy between the parties, a process which must inevitably and in the long run lead to embarassment, if not demoralization all round. Especially when the parties are rich and obstinate, vakils appearing for them would be subjected to a degree of pressure to swear to affidavits which is not to be encouraged. Confidence in the impartiality of the officers presiding in the Courts of Justice is the very foundation of our judicial system and indeed of any civilised system and if such officers are dragged into the battle of allegations and counter allegations that is appropriate only to the role, of litigants, their detachment and the confidence which such detachment inspires will be seriously impaired. Mr. Narasaraju however, contended that to lay down the rule in the hard form in which it has been done in the Bombay case would be to set a premium on carelessness and inexactitude. But when we realise that the number of litigants runs into hundreds of thousands while judicial officers are relatively a handful that as a rule a judicial officer has no interest in a case beyond seeing that it is terminated and that they receive a training and are subject to, a discipline from which litigants are immune, the evil which Mr. Narasaraju apprehends is surely much the smaller one.

I think that when there is any controversy between the parties the statement made by the Judge should be accepted as final and conclusive. The procedure which Subba Rao and Somasundaram, JJ. adopted in App. No. 567 of 1947 does not, as I understand their order, involve a deviation from the old established rule. In that case there was an affidavit by the Advocate on one side which by implication stood unchallenged indicating that there had been some misapprehension in the mind of the learned Subordinate Judge. A report was called for from the Subordinate Judge and it was essentially on what was stated in that report that the learned Judges rested their final order. The observations of Sadasiva Aiyar, J. in Nellavadivu Ammal v. Subramania Pillai , are not to be understood as deliberately intended to introduce a proviso to the rule laid down in the earliest case. The learned Judge was merely making a comment in passing and I do not think it was his intention to discuss the rule or express any considered opinion on it. Somewhat similar remarks apply to the decision in Hurdayal Singh v. Heeralal .

It is however easy to visualise situations to which the rule laid down in the Bombay case , would have no application. One would be where there is an enquiry into an accusation of misconduct against a judicial officer in relation to a particular case. Another would be where there is in reality no controversy at all between the parties and it is apparent from the affidavits of the Advocates on both sides that the learned Judge fell into an accidental error. The presents case falls into the latter category. The parties agreed only as to what should be done in C.M.A No. 123 of 1947, but the learned District Judge who had at the same time C.M.A No. 25 of 1947 before him thought that the agreement extended to both appeals. It is true and the authorities also leave no room for doubt on this point that the most appropriate remedy in such a situation is to apply by way of review to the very same Judge. That is what the parties here should have done. They probably failed to do so because the learned Judge was transferred about a month afterwards and the docket to the copy of the order of the lower Court shows that the copy was obtained only on 28-9-1949 i.e, after the learned Judge had been transferred.

In the circumstances, I dismiss O.R.P No. 1521 of 1949 with costs and direct that I.A No. 320 of 1946 be restored to the file of the Subordinate Judge for disposal according to law on the merits since that was what the parties agreed to before the District Judge. I allow C.R.P No. 1619 of 1949 with costs and direct the District Court to dispose of C.M.A No. 25 of 1948 on its merits.

N.R.R