Calcutta Properties Ltd. And Etc. v. S.N Chakrabortty .

A.M Bhattacharjee, J.:— Both the First Miscellaneous Appeal and the First Appeal noted above are being disposed of by this common judgment whereunder the former shall stand dismissed while the latter shall stand decreed.

2. A mortgage-suit being T.S No. 46 of 1969 was instituted in the 3rd Court of the Subordinate Judge at Alipore by the appellant against the original mortgagor as the defendant No. 1 and the subsequent purchaser of the mortgage-security as the defendant No. 2, who is now the respondent before us. The learned Judge, by his order dt. 21-1-71, dismissed the suit as in his view the mortgagor defendant No. 1 having died before the institution of the suit, the suit was not maintainable and could not proceed against the respondent-defendant No. 2 who was, as already noted, subsequent purchaser of the mortgage-security. As we shall see when we would deal with F.A No. 162 of 1973, the order of the learned Judge was patently erroneous. The learned Judge also realised it very soon that he was wrong, but in order to undo that wrong, he committed another wrong by revie wing and setting a side the order dt. 21-1-71 by his order dt. 27-1-71 and restoring the suit back to file and all these were done by the learned Judge suo motu and without any notice to or any application from any of the parties. Being aggrieved, the respondent-defendant No. 2 filed an application under O. 47, R. 1 of the Civil P.C for review of the order dt. 27-1-71 and the same has been allowed by the successor learned Judge by his order dt. 29-9-72 by setting aside the second order dt. 27-1-71 and restoring the first order dt. 21-1-71. The plaintiff-appellant has moved us in appeal against the last order dt. 29-9-72 in this F.M.A No. 773 of 1973 and we have not the slightest doubt that we must dismiss the appeal.

3. It is true that, as would be seen hereafter, the order dt. 21-1-71 dismissing the suit was c learly wrong. But we are afraid that such wrong could not be righted by another wrong. Notwithstanding Bassanio's appeal in the Merchant of Venice to “do a little wrong” in order “do to a great right”, in the domain of Law as at present, as in the sphere of Morality, the end however good and laudable, does not, by itself, justify the means and the means must justify itself. Under O. 20 R. 3 of the Civil P.C the learned Judge, after having pronouncedand signed the order dt. 21-1-71, could not thereafter alter or add to the same save as provided by S. 1 of the Code or on review. S. 152 having merely provided for correction of clerical or a rithmetical mistakes or errors arising from any accidental slip or omission could not sustain the order dt. 27-1-71 whereby the earlier order dt. 21-1-71 was set aside on the ground of erroneous application and appreciation of law and facts. Andasthe provisions of S. 114 and O. 47 R. 1 of the Code would show, the power of review, if otherwise exercisable, could be exercised only on the application of a party and not by the Court on its own motion and itisadmitted that there was no such application by any party in this case.

4. Mr. Sengupta appearing for the appellant, has urged that the order dt. 27-1-71 could be passed by the Court in exercise of the inherent power of review under S. 151 of the Code. There are authorities for the view that inherent power cannot be exercised by a Court to reverse its earlier order on the sole ground that it is later found to be erroneous on law or facts. But assuming arguen do to that such a power could be exercised, we have no manner of doubt that the same could not be exercised without notice to and thus behind the back of the party in whose favour the earlier order was made. It is now settled law that the principle of natural justice as enshrined in the maxim “Audi Alteram Partem” must always operate in judicial procedure unless its operation is ruled out by express declaration or irresistible implication. As observed by Vivian Bose, J., in the Supreme Court decision in Sangram Singh v. 1. Election Tribunal, Kotah, AIR 1955 SC 425 at p. 429, “there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their live sand property should not continue in their absence and that they should not be precluded from participating in them”. It was observed further that “there must be exceptions and where they are clearly defined they must be given effect to”, but that “taken by and large, and subject to that proviso, our laws of procedure should be construed wherever that is reasonably possible in the light of that principle”. Therefore, even if the provisions of S. 151 of the Code are construed to have preserved inherent power of review apart from and dehors the provisions of S. 114 and O. 47 R. 1 of the Code, they must be so construed as to require notice to the parties or the party affected before such power can be exercised, in accordance with the principle of natural justice which is a fundamental principle of our judicial procedure.

5. The order dt. 27-1-71 on the face of it having been passed without any notice to and behind the back of the respondent-defendant No. 2 and having set aside the earlier order dt. 21-1-71 passed in his favour dismissing the suit, was therefore vitiated by an error apparent to warrant i ts review under S. 114 read with O. 47 of the Code. Assuming, though not deciding, that the Court had inherent jurisdiction to review under the provisions of S. 151 of the Code, such power could be exercised only with and after notice to the parties and as ruled by the Federal Court in Harishankar v. Anath, AIR 1949 FC 106 at pp. 110-111, if the Court disposes of a case without adverting to or applying its mind to the provisions requiring it to exercise its jurisdiction in a particular manner that would amount to an error analogous too ne apparent on the face of the record sufficient to bring the case within the purview of O. 47, R. 1 of the Code. The learned successor Judge, therefore, was perfectly justified in allowing the application for review filed by the respondent-defendant No. 2 by his order dt. 29-9-72 whereby be has set aside the second order dt. 27-1-71 and has thereby restored the first order dt. 21-1-71 dismissing the suit. We accordingly dismiss the F.M.A No. 773 of 1973 challenging the order of the learned Judge dt. 29-9-72.

6. But the first order dt. 21-1-71 has been challenged in F.A 162 of 1973 and, for the reasons stated hereinbelow, the appeal would have to be allowed. The learned Judge passed the impugned order dt. 21-1-71 and dismissed the suit solely on the ground that according to him a suit by the mortgagee for the enforcement of his mortgage-security is not, maintainable and cannot be proceeded with against a purchaser of the mortgage-security without the principal mortgagorasa party on record. This position cannot be maintained particularly in view of S. 59A of the Transfer; of Property Act which was inserted by the Amending Act of 1929 to make it clear that the expressions “mortgagor” and “mortgagee” would include all persons deriving title under them. Even that apart, by the same Amending. Act of 1929 the words “the mortgagee has right to sue the mortgagor for the mortgage-security”, in S. 68(1) were replaced by the 1 words “the mortgagee has a right to sue for the mortgage-security” and the words “the mortgagor” had been omitted to avoid the implication that the mortgagee can only sue the mortgagor himself and not his transferee or successor. The learned Judge relied on a decision of the Travancore-Cochin High Court in Parameswara v. Krishna, AIR 1953 Trav-Co 473, for the purpose where the suit was brought against the original mortgagors and also subsequent charge-holders in respect of the mortgaged property. It was found that the original mortgagors were dead before the institution of the suit and it was accordingly held that the suit could not proceed against the charge-holders alone as no effective decree could be passed against them. There is good deal of difference between a purchaser of mortgage-security and a charge-holder thereof. As is wellknown, inacharge there is no transfer of any interest in the property but only creation of a right of payment out of property specified. A charge only gives right I to payment out of a particular fund or property without any transfer of that fund or property and therefore a subsequent charge-holder in respect of a mortgage-property is not “a person deriving title from” the mortgagor within the meaning of S. 59A of the Transfer of Property Act liable to be sued in a suit for the enforcement of the mortgage-security. That apart, the Transfer of Property Act was also not extended to the State of Travancore Cochin when this case of Parameswara (supra) was decided and therefore the decision was rendered without any consideration of the provisions of S. 59A, S. 68 or any other prpvisions of the Transfer of Property Act with which we are concerned in this case. The learned Judge was, therefore, wrong in holding that the suit could not proceed against the respondent-defendant No. 2 who was the subsequent purchaser of the mortgage-security in the absence of the original mortgagor. As already noted while dealing with F.M.A 773 of 1973, the learned Judge, himself realised his error in passing the order dt. 21-1-71 and tried to rectify the same by his order dt. 27-1-71 he, in good faith, attempted a short cut, but that was, however, a Wrong cut.

7. We, therefore, allow the First Appeal No. 162 of 1973 and set aside the impugned order dt. 21-1-71 dismissing the suit on the preliminary point as to maintainability and remand the Title Suit No. 46 of 1969 to the Court below with a direction to readmit the is ame under it so riginal number and to proceed to determine the suit as expeditiously as possible. As already stated, First Miscellaneous Appeal No. 773 of 1973 would stand dismissed. We, however, make no order as to cost in any of these appeals as the erroneous orders of the Court were responsible for all these confusions giving rise to these two appeals. The records to go down at once.

No order is passed on the alternative application filed on 9-1-73.

Sankari Prasad Das Ghosh, I.:— 8. I agree.

Ordered accordingly.