Pandurang Shridhar Pathak v. Narhar Pandurang Atre

Macleod, C.J:— We think that the order of September 25, 1923, made by the Subordinate Judge was beyond his powers and that, therefore, it must be set aside. On January 16, 1922, an order was passed that execution should proceed against the judgment-debtor in the case for Rs. 180. On March 25, 1922, another order was passed on the judgment creditor's application that the amount prayed for, namely, Rs. 443, should be realised by sale of the mortgaged property. The sale was held in pursuance of the latter order and the purchaser was put into possession. Later it was represented to the Judge that when the order of March 25, 1922, was passed, the order of January 6, 1922, was lost sight of, so that there was an irregularity in the sale. The Judge thought that he had inherent powers under section 152 of the cpc to set aside the order of March 25, 1922, and the sale held thereunder. So be ordered the amount paid by the auction-purchaser to be refunded and sent back the proceedings to the Collector to recover Rs. 180, and costs of the darkhast by sale of the mortgaged property or a sufficient part thereof. It might have been within the competence of the Subordinate Judge to alter the order of March 25, in which the figure ‘443’ had been entered by an error. But we are of opinion that he had no jurisdiction to go further and set aside the sale which had taken place under that order, with the result that the rights of third parties had arisen. In Hatton v. Harris(1), Lord Watson said (p. 560):—

“When an error of that kind hag been committed, it is always within the competency of the Court, if nothing has intervened which would render it inexpedient or inequitable to do so, to correct the record in order to bring it into harmony with the order which the judge obviously meant to pronounce.”

2. The laches of the judgment-debtor has not been accounted for.

3. He stood by and saw his property sold to recover Rs. 443, when the proper amount was Rs. 180, but the rights of third parties have now intervened and we cannot interfere with the right of the auction-purchaser to retain the property in the circumstances of the case.

4. We, therefore, make an order setting aside the Subordinate Judge's order of September 25, 1923, and directing that possession should be restored to the auction-purchaser. He is entitled to the costs of these proceedings from the judgment-debtor.

5. Our thanks are due to the learned pleaders who have argued this matter before us.

6. Order set aside.