Sreenath Das vs Ghanashyam Naik

Atkinson, J.—The plaintiff in the present suit seeks to rectify a decree passed in Original Suit No. 659 of 1911; and consequential upon such rectification he seeks for an order declaring him entitled to be repaid by defendant No. 1 the sum of Rs. 245-8-0 which was levied from the plaintiff in execution of the aforesaid decree.

The facts are within a very narrow compass and may be shortly stated. Defendants Nos. 3 and 4 as mortgagors mortgaged to defendant No. 2 certain property. Defendants Nos. 5 and 6 were subsequent purchasers of the property; and the present plaintiff was a puisne incumbrancer upon this mortgaged property. Defendant No. 2 obtained as against defendants Nos. 3 and 4 a mortgage decree by way of compromise; and as against defendants Nos. 5 and 6 and the present plaintiff, defendant No. 2, obtained in the former suit a decree ex parte after process duly served. Defendant No. 1 in the present suit is the transferee or assignee of the mortgage decree originally obtained by defendant No. 2 in the former suit. The original mortgage suit was instituted more than six years after the due date of payment provided in the mortgage bond. The ex parte decree Was obtained as against defendants Nos, 5 and 6, and the present plaintiff; and contained an order directing the mortgage money to be realized out of the mortgaged property; and coupled with that direction, there was a further order providing that in the event of the mortgaged property realizing an amount insufficient to pay the mortgage debt in full, that then the balance was to be recovered from the original mortgagors and defendants Nos. 5 and 6 and the present plaintiff personally. The present plaintiff, as I have already said, was a puisne incumbrancer upon the mortgaged property. It is con tended that the Court had no power to make a personal order to pay as against a puisne incumbrancer, and thus there was a mistake in the decree so far as the plaintiff is concerned; and that there being a mistake, the decree ought to be rectified and the plaintiff who has paid money as a consequence of that mistake, ought to have the money refunded to him.

There can be no question that the Court had jurisdiction in the mortgage suit to grant the mortgage decree. In drawing up the decree a mistake apparently was made so far as the decree imposed a personal liability to pay upon the plaintiff should the mortgaged property realize insufficient to satisfy the money due on foot of the mortgage bond. The decree was one made by a Tribunal having jurisdiction and contained a mere error.

Defendant No. 1, after he became the assignee of the original decree, proceeded to execute the decree. He filed more than one application for execution; and in the course of the several executions which were effected, he realized Rs. 245-8 0 from the plaintiff without protest on the part of the plaintiff. The plaintiff now seeks to recover that sum from the defendant No. 1, the money having been paid under compulsion of a legal process. The plaintiff allowed the original decree so far as he is concerned, to be passed against him ex parte, after due service of summons and all necessary formalities having been complied with; and therefore no equity attaches to the plaintiff''s position so far as his claim to relief in the present suit is concerned. In effect, the plaintiff''s claim is to recover money paid under compulsion of legal process on the ground that the decree under which the money was paid, was wrong in form and contained an error.

The learned Judge on appeal held that the present suit was maintainable and granted the plaintiff the relief which he sought by awarding him a decree for Rs. 208 odd as against defendant No. 1. From that decision the defendant No. 1 has appealed to this Court. The question we have to determine, is whether or not the view taken by the learned Judge is right in point of law. The learned Judge lays down the proposition that if there be a mistake in a decree, the Court has jurisdiction in an independent suit to rectify that mistake and grant relief. This proposition seems to us to be too wide. No doubt Section 9 of the CPC does confer jurisdiction on all Courts to try all suits of a civil nature, excepting suits expressly or impliedly barred; and a suit to rectify a decree on the ground of mistake, would be entertainable within the meaning of that section [Jegeswar Atha v. Ganga Bishun Ghuttack 8 C.W.N. 473]. But the mere existence of a mistake does not afford a ground for granting relief in every case. To warrant a Court in granting relief on the ground of mistake it ought to have regard to the principles which guided the Courts of Chancery in England in granting relief in such suits prior to the Judicature Act of 1876, and which principle still prevails, Whether there is jurisdiction in the Courts of India to grant relief by independent suit seeking to rectify a prior decree founded, on some mistake, has been the subject of diverse opinions, but whether such relief should or ought to be granted, must invariably depend upon the facts of each particular case and the equity, if any, attaching to the rights of the party invoking the aid of the Court.

If a Court has jurisdiction to pronounce a decree and some mere irregularity or error arises in the drawing up of the decree that, of necessity, does not justify a Court in granting relief in a subsequent suit to rectify the mistake though it might afford some ground for supporting an application for review. In the case of Jogeswar Atha v. Ganga Bishun Ghattack 8 C.W.N. 473 the ratio decidendi for holding that a subsequent suit might be brought to rectify a mistake in an original decree, was that the original Court bad no jurisdiction to include in its decree a certain denomination of property; and that it had included in a mortgage decree and directed a sale of certain property which ought to have been excluded and with respect to which it had no jurisdiction to deal. In a more recent case [Chand Mea v. Srimati Asima Banu 10 C.W.N. 1024] the authorities, so far as they have laid down the principle of law applicable to this country, have been fully considered and the, learned Judges say at page 1025 as follows: "We do not understand how such a decree which was made in the presence of both the parties and which apparently is conclusive between them, and is not tainted by fraud, can be set aside by a separate suit." I take this expression of opinion to mean not that there is no jurisdiction in a proper case to set aside, or rectify by independent suit, an original decree founded on some grave mistake or fraud, but that on the facts proved in that particular case no facts were established to justify the Court in granting the relief claimed. In support of this view, I am fortified by the observation of their Lordships at page 1025 in which they say: "We do not think it can be so broadly laid down, as has been contended for by the learned Vakil for the respondent, that any error in a decree made by a Court, may be challenged by a separate suit; for in that event there would be no finality in a judgment or a decree. Our attention, however, has been called to the case of Jogeswar Atha v. Ganga Bishun Ghattack 8 C.W.N. 473 as laying down an opposite view of the matter; but upon examination of the facts of that case, it will be found that they are quite distinguishable from the facts of the case with which we are now concerned, There, property No. 3 was not claimed by the plaintiff in the previous suit and, by some mistake or other, that property was entered in the decree in the place of property No. 4, which had been claimed, and when a suit was brought for the purpose of rectifying the decree on the ground of mistake, it was held that such a suit would lie, having regard to the provisions of Section 11 of the Code of Civil Procedure. It would appear that, in the previous suit, the Court had no authority to make a decree, as it did, in regard to property No. 3, for that was not the subject-matter of the suit. But, in the present case, as I have already pointed out, the Court had authority to make an order for ejectment in the event of the rent not being paid." This decision does not, in my opinion, negative the right to rectify an original decree grounded on mistake by a subsequent suit, but on the contrary it seems to recognise the right, if proper facts are established, to justify the intervention of the Court in granting relief.

I attach vital importance to the finality of litigation: and I would be no party to any decision which would lay down needlessly any principle which would justify the re-opening or setting aside of a decree on some mere flimsy pretext. To do so, would utterly destroy the sense of finality which the law requires for the enforcement of its decrees. But I cannot refrain from expressing my opinion that it would be impossible to hold that if a decree has been procured by some grave mistake so as to vitiate the whole character of the decree, and to permit its execution would amount to an abuse, that there is no power to rectify the error or mistake upon which the decree was founded by independent suit, and most certainly to hold otherwise would be contrary to the elementary principles of natural justice coupled with equity and good conscience. In the main, I agree with the summary of the law as expressed by Mr. Justice Chapman in the case of Janakdular Saran Misser v. Ambica Prasad Singh 39 Ind. Cas. 126 : 2 P.L.J. 313 and at page 318 page of 2 P.L.J.- Ed the learned Judge says: "In one department of this jurisdiction the Courts of Chancery used formerly to interfere where the legal judgment was obtained through fraud, mistake, or accident, and there had been no negligence, laches or other fault on the part of the person seeking the assistance of the Court of Chancery, or, on the part of his agents. The Court of Chancery, even where there had been mistake or accident, would interfere only in a case in which the judgment could not conscientiously be enforced. This practice in Chancery originated at a time when the Law Courts had little or no power to grant new trials for such causes. To prevent a failure of justice, the equitable jurisdiction of granting new trials in the Court of Chancery was admitted. Since the fusion of the Courts of Law and Equity and since the Courts in England have acquired very wide powers for the purpose of amending their proceedings or of granting new trials themselves, I cannot find that the exercise of this jurisdiction has continued in England." I disagree, however, with my learned brother when he says that the jurisdiction which he has so accurately described has not continued to be exercised in England. No doubt the need for the exercise of this jurisdiction in England has become less by reason of the wide power of amendment conferred on all Courts by the Judicature Rules; but the jurisdiction to rectify a decree founded on mistake or fraud by independent suit, has never been abandoned by Courts of Equity in England. The jurisdiction still exists; the question in each case is, do the facts warrant the exercise of that jurisdiction? In my opinion, the case of Jogeswar Atha v. Ganga Bishun Ghattack 8 C.W.N. 473 was not wrongly decided on its fasts and the principle of law applicable thereto. Mr. Justice Roe in the case of Janakdular Saran Misser v. Ambica Prasad Singh 39 Ind. Cas. 126 : 2 P.L.J. 313, considered, and I agree with his expression of opinion, that in England there is a right to rectify a mistake in an original decree though the method of procedure at present is perhaps different from that which existed formerly. But the inherent essence of the right to correct a mistake in an original decree, exists even though in England the modern Code of procedure may have modified the character of the enforcement of that right. The learned Judge says as follows: "Upon the investigation of my learned brother into the attitude of the English Courts towards cases of this nature, I am compelled to agree with great respect that the learned Chief Justice of Bengal was to some extent in error in Jogeswar Atha v. Ganga Bishun Ghattack 8 C.W.N. 473 if he really intended to say that actions are maintainable, in the English Courts to give relief against one''s own carelessness. I have discovered many cases in which such relief has been given upon motion. There would be no difficulty at all in granting similar relief under Order XLVII, Rule 1 and very little now in stretching Rule 2 to cover the point, but the instances in which actions have been maintained to rectify an error in a decree, have all been instances in which the error was due to a mutual mistake or a mistake by the opposite party." The learned Judge then sets out the cases relied upon by him to support the conclusion arrived at in his judgment. Thus I take it that Mr. Justice Roe recognises that there is still power to rectify an original decree by motion and also by suit. The policy of the Judicature Rules was to modify the old formalities required in the Court of Chancery and to abolish the rigid restrictions of the Common Law Courts; and thus it is that now cases in which mistakes occur in the drawing up of decrees, are disposed of by way of motion; but this fact has not destroyed or nullified the past and present existing alternative right and jurisdiction vested in the Courts of Equity in England to rectify a decree founded on mistake by an independent suit.

Now the original decree in this case was obtained by way of compromise as against the original mortgagors, defendants Nos, 3 and 4, and with regard to the other defendants, and the present plaintiff ex parte; and they having been duly served with the process of the Court, took no steps to safeguard or protect their interests and beyond all question the plaintiff has been guilty of laches, negligence and carelessness, Though there may have been an irregularity in the exercise of the Court''s jurisdiction that in itself does not per se justify a Court in granting relief in a subsequent suit to rectify the irregularity on the ground of mistake. Therefore, it would appear that the learned Judge erroneously applied the legal principle not applicable to the facts of this case. The reasoning of the judgment in Jogeswar Atha v. Ganga Bishun Ghattack 8 C.W.N. 473 cannot apply, bearing in mind always that the plaintiff in this suit must be deemed to have known of the existence of the ex parte decree, and to be aware from time to time while various executions were proceeding against his property, that there was a personal decree against him; and that he took no steps to ascertain the nature or the circumstances under which that decree was pronounced; and thus in equity he is not entitled to the relief he seeks. The, facts of this case do not justify the intervention of the Court in exercising its jurisdiction to grant relief by independent suit to cure a mere irregularity or error in the original decree acquiesced in by the parties. Therefore, the decree of the learned Judge awarding the plaintiff Rs. 208 odd, cannot stand. For an additional reason this action should also fail. The action is really in effect framed to recover money paid under compulsion of legal process as money had and received. It is well-settled now that if money is paid under compulsion of legal process, it cannot be recovered as money had and received unless it was realized by fraud or some unconscionable dealing on the part of the decree-holder but ordinarily money paid in obedience to a legal process, is irrecoverable. The principle of law laid down in the case of Marriot v. Hampton (1797) 7 T.R. 269 : 2 SL.C. 403 : 2 Esp. 546 : 4 R.R. 439 : 101 E.R. 969 has never, been dissented from and has been accepted as the established law of England; and the principle laid down in that case has also been recognized to be the principle applicable to the law of India as decided by the case of Harinath v. Hara Das Acharja 29 Ind. Cas. 580 : 23 C.L.J. 163 : 20 C.W.N. 188 : 43 C. 269. Their Lordships in the latter case distinguished the facts of that case from the facts of Marriot v. Hampton (1797) 7 T.R. 269 : 2 S L.C. 403 : 2 Esp. 546 : 4 R.R. 439 : 101 E.R. 969 and held that in the case that they were considering that there was apparent mala fides on the part of the payee and that therefore the payer of the money was entitled to be repaid. But the general principle of law laid down in Marriot v. Hampton (1797) 7 T.R. 269 : 2 S L.C. 403 : 2 Esp. 546 : 4 R.R. 439 : 101 E.R. 969 was accepted by their Lordships. Likewise the case of Harriot v. Hampton (1797) 7 T.R. 269 : 2 S L.C. . 403 : 2 Esp. 546 : 4 R.R. 439 : 101 E.R. 969 was distinguished in the case of Ward & Co. v. Wallis (1900) 1 Q.B. 675, 69 L.J.Q.B. 423 : 82 L.T. 261 : 16 T.L.R. 193 on the ground of fraud; but the law as laid down in Marriot y. Hampton (1797) 7 T.R. 269 : 2 S L.C. 403 : 2 Esp. 546 : 4 R.R. 439 : 101 E.R. 969 has never been dissented from. But if any particular case is within the principle of the exception laid down in Marriot v. Hampton (1797) 7 T.R. 269 : 2 S L.C.. 403 : 2 Esp. 546 : 4 R.R. 439 : 101 E.R. 969 relief can be granted and the money paid recovered. The exceptions stated in Marriot v. Hampton (1797) 7 T.R. 269 : 2 S L.C. 403 : 2 Esp. 546 : 4 R.R. 439 : 101 E.R. 969 ate fraud and unconscionable dealing. That decision was given in the old days when there was a marked difference between the relief capable of being granted at law and in equity. But since the fusion of the Courts of Law and Equity in the year 1876, the old distinctions have ceased to exist and the principles of equity must now prevail. If in equity a decree could be rectified on the ground of mistake, as I believe it could and still can, then money paid under such a decree would be recoverable in equity but not at law. Therefore, as the principles of equity are to prevail over the harder and more dogmatic and inflexible rules of law, I think there may and ought to be added to the exceptions laid down by Marriot v. Hampton (1797) 7 T.R. 269 : 2 S L.C. . 403 : 2 Esp. 546 : 4 R.R. 439 : 101 E.R. 969, in addition to fraud and unconscionable dealing, the case of mistake, viz., a decree obtained by mistake if the mistake was of such a character as equity would relieve against. No doubt it is true as Chapman, J., observed in the case cited "that at Common Law no case can be found where money paid under compulsion of legal process was recovered back on the ground that the legal process or judgment had been obtained by mistake". But we have to apply equitable principles where equity conflicts with law; and thus it appears not only logical but sensible that if equity would rectify a decree obtained by mistake so money paid under such a decree would be recoverable under the existing legal procedure applicable in England provided always the mistake was of such a nature and character as would induce a Court of Equity in the exercise of its beneficent jurisdiction to grant relief. However, in the present case we are satisfied that the plaintiff has not established facts to show that any mistake in fact took place in the preparation of the decree, coupled with his subsequent conduct, which would afford him any grounds of relief in equity. Therefore, we think that the learned Judge was wrong in the conclusion at which he arrived. His order is accordingly set aside and this appeal is decreed with costs in ail Courts.

Mullick, J.

I agree.