Mohabir Proshad Choudhury v. Chandra Sekhar Sahi

This was a Rule calling on the Opposite Party to show cause why we should not amend a decree of this Court which is now under execution. It was heard at length on the 3rd instant, when, at the suggestion of the Petitioner, who has also sought for a remedy by appealing to this Court against the refusal of the lower Court to execute his decree, we reserved judgment and intimated that we would dispose of both the appeal and the rule together. On further consideration, however, and in view of the delay which the course suggested will involve and of the circumstance that the question now raised is totally different from that raised by the appeal, we are strongly of opinion that we ought to deal with the latter as soon as possible.

The decree was for the sale of certain property, which was originally an undivided share in a mahal bearing tauzi No. 588 in the Patna Collectorate and is go described in the mortgage deed, but which was, before the institution of the suit, formed into a separate mahal bearing tauzi No. 2014/9706. No mention of the change was made during the proceedings in the Trial and Appeal Courts, and our decree naturally and properly followed the description in the deed. The result is that, the decree has so far been found to be waste paper, and we are asked to make the necessary amendment.

For the Opposite Party Mr. Sinha has argued that the only provision of the Code of Civil Procedure, 1908, under which this could be done is sec. 152, and that obviously has no application. In this he is, we think, clearly right: but we are unable to yield to his further argument that, if this special section cannot be applied, we cannot fall back upon and apply the general provision saving our inherent jurisdiction to be found in sec. 151. For sec. 151 expressly declares that “nothing in this Code” — and, therefore, nothing in the next sec. 152 — “shall be deemed to limit or otherwise affect the inherent jurisdiction of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.” And it seems to us that, if ever there was a case of justice calling for our intervention in order to prevent a mockery and travesty of itself, this is one. The facts are admitted, and on the merits all that can be suggested is that the Petitioner had a sinister motive in deliberately giving the misdescription: but we confess ourselves wholly unable to conceive how it can possibly have been so, while we cannot see that the Opposite Party has been in any way damnified or prejudiced in the slightest degree.

We make this Rule absolute with costs and amend the decree by including in it both the old and the new description of the mortgaged property, and we fix the hearing fee at five gold mohurs.

Rule made absolute.