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Judgment
C.R.P. No. 2458 arises out of an order restoring an application filed u/s 19 of Act IV of 1938 and returned for presentation in a proper Court.
The facts necessary to understand the matter are as follows- The decree in question was passed on a mortgage in favour of the plaintiff and the
11th defendant. Defendants 1 to 5 represented the mortgagors. Defendants 6 and 7 are the wives of defendants 1 and 2. The latter had paid off
one of the co-mortgagees, the 11th defendant, but got him to transfer his interest to their wives, defendants 6 and 7. The lower Court''s decree
contained a clause safeguarding defendants 6 and 7 if they should in proper proceedings claim any equities as against the plaintiff. An appeal was
taken against this part of the decree and also a minor correction was sought in another matter. While this appeal was pending, Act IV of 1938
came into force and an .application was filed by the 1st defendant, who was not contesting the appeal in the High Court, to scale down the decree.
Shortly after this application had been filed, the High Court gave judgment in the appeal deleting from the decree the clause which safeguarded the
rights of defendants 6 and 7 and finding specifically that defendants 6 and 7 were mere name-lenders for the mortgagors, defendants 1 and 2. At
the time when judgment was pronounced, it was represented to the learned Judges that there was an application pending in the lower Court for
relief under Act IV of 1938. The learned Judges therefore provided in their judgment that their decree was to be '''' subject to the final orders that
may be passed on that application so far as the amount due under the said mortgage is concerned."" After this judgment was pronounced there was
a series of misunderstandings in the lower Court. It appears to have been represented to the vakils appearing on both sides that the proceedings in
the lower Court must stop ;as a consequence of the High Court''s decree and must be continued in the High Court. The applicant''s vakil took time
to consider his position and then applied to the lower Court for the return of the application and the application was directed to be returned, for
presentation in a proper Court., It was not actually taken back and it lay in the Subordinate Judge''s Court for nearly two months. Meanwhile the
1st defendant seems to have got a copy of the High Court''s judgment, which presumably was not available previously, and to have discovered that
the High Court had made its decree specifically subject to the decision of the pending application by the trial Court. . He therefore filed the
application E.A. No. 299 of 1939 explaining how the mistake had arisen and asking the lower Court to hear the original application, which was still
in the Subordinate Judge''s office, on the merits. The learned Subordinate Judge, on going into the matter, came to the conclusion that there was
either a mutual mistake on the part of the lawyers on both sides or a mistake on the part of the applicant of which the respondent desired to take
advantage and it was necessary to carry out the direction of the High Court''s judgment and decide the application which was pending at the time
when that judgment was pronounced.
It has been argued before us on various grounds that this decision is one which has to be modified in revision. The main contention is, that the
revived application must be deemed to have been presented for the first time on the date on which it was revived and that this date being more than
sixty days after the passing of a stay order u/s 20 of the Act, the application, was barred by limitation. We do not think that this contention can
succeed nor does it seem to us that the question of limitation actually arises. If the revived application is to be regarded as a new application
presented for the first time, that must be on the ground that the prior application had in substance been rejected. If it was rejected, no question of
limitation would arise and of course the decree would necessarily have to be executed as it stands. If, however, the previous application was not
rejected, but was merely in a state of suspense until it was revived, then quite clearly the application which was finally heard was the application
originally presented within sixty days of the stay order and the proceedings connected with the abortive return will not alter that fact.
The only question therefore, which we have really to decide is whether the lower Court had power to revive this application in the circumstances
of the case. If the Court did so revive it, it certainly cannot be deemed to have entertained a fresh application; nor would the reservation in the High
Court''s order have any relation to a fresh application filed after the High Court''s judgment. We see no reason why the lower Court''s order
reviving this application should be set aside in revision. On the finding of the learned Subordinate Judge there was a clear error of fact which led the
applicant to, make a representation to the Court regarding the effect of the High Court''s judgment and this misapprehension was apparently shared
by the vakils on either side and by the Court when it passed the order returning the-application for presentation in a proper Court. Had the
applicant known the true nature of High Court''s order there would have been no question of asking for return; nor could the Subordinate Judge
have returned the application for want of jurisdiction. Everybody seems to have been labouring under the same mistake and it seems to us that the
Court had the power in the circumstances of this case to set right the consequences of this common mistake by restoring the petition and going on
with it from the point at which the proceedings were broken off as a result of this erroneous impression regarding the High Court''s order. We
therefore do not consider it necessary or desirable to interfere with the order of the Subordinate Judge restoring the application that was directed
to be returned.
The application, when restored, resulted in an amended decree which comes up for consideration in C. R. P. No. 1880 of 1940. When there is
an amended decree, an appeal must be filed against that decree and no revision can be entertained. The same observation applies to C. R. P. No.
1881 of 1940 which is concerned with an order passed amending the same decree at the instance of the second defendant. There will be one
week''s adjournment for the petitioners to consider whether they wish to pay Court-fee on these two revision petitions and get them converted into
appeals.
C.R.P. No. 2458 of 1939 is dismissed with costs.