At the last hearing of this appeal* we held, disagreeing with the lower Court, that plaintiff was not entitled to the charge she claimed, because inter alia it was not conferred on her by her decree, Ex. J-3. That decree was passed on an award, Ex. J-1 but did not in our opinion reproduce the term thereof, by which such a charge as plaintiff set up was created. Plaintiff after our decision induced the Court, which passed Ex. J-3, to amend it under Sect. 152, Civil Procedure Code by removal of what in the affidavit filed there is described as a clerical error and to insert words making the provision her case here required. She then moved for a re-hearing of the appeal on review and we allowed it.
The Advocate-General, on behalf of 3rd defendant, the appellant, first asked us to postpone the re-hearing until he had appealed to the Privy Council against our order granting a review. But we pointed out that such an order could not be regarded as final for the purpose of Sect. 109, Civil Procedure Code, and that his application for leave in connection with it would be unsustainable. The re-hearing accordingly proceeded.
It may for the present purpose be at once conceded that, if Ex. J-3 had stood on 8th December, 1917 the date of 3rd defendant's purchase in Court-sale, as it does now, plaintiff would be entitled to relief. The question however is whether she is so entitled, when Ex. J-3 as it was passed on 5th January, 1917, and as it was expressed on the date of the sale, conferred no charge and recognised one only by the amendment, made over four years later, on 25th November, 1921, in proceedings, to which 3rd defendant was not a party.
The exercise of the power to amend under Sect. 152 is discretionary and necessarily so, when no period of limitation is provided for application for its exercise and therefore no investigation of title can insure those who acquire rights in property dealt with in a previous decree, against the effect of a subsequent amendment thereof. This and the consequence, that an application for amendment should be rejected as too late, if the right of third parties acting in good faith have intervened, is recognised in Hatton v. Harris and Langat Singh v. Janki Koer. It is clear that, if the amending Court, the District Court of Madura, had the full facts before it, its duty would have been to refuse to use its powers for plaintiff's benefit. In fact, as the copies filed here of the affidavits on which it acted show, it was told nothing of those facts or of the present proceedings, from which the necessity for plaintiffs' obtaining an amendment had arisen, the construction which had actually been adopted by us being represented in one affidavit merely as “likely”. If the District Court had been aware of the real state of the case, it cannot be doubted that it would have refused to consider the application, until at least 3rd defendant had had notice of it.
Plaintiff here has not succeeded in showing that the principle above referred to is for any reason inapplicable to this case and has argued only that, under the Civil Procedure Code, she could not have proceeded otherwise than she did and could not have made 3rd defendant a party to the amendment proceedings. It is not necessary for us to express a final opinion as to the applicability of O. 21, R. 10 or on the question whether the reference in that provision to “the pendency of the suit” covers the period between an original and an amended decree. For plaintiff could and should have made 3rd defendant a party in compliance with the general principle that persons, whom it is desired to bind by proceedings can and must be impleaded in them. 3rd defendant having had no previous opportunity to object to the amendment, is entitled to object to it now; and as it was delayed until long after he acquired his rights at the sale, by the immense of which plaintiff admittedly knew his objection must prevail.
Holding that the amended decree cannot in the circumstances be pleaded against 3rd defendant, we again allow the appeal dismissing plaintiff's suit with costs (including those of the review petition) throughout.
C.KAppeal allowed.