Case Note & Summary
The dispute concerned a mortgage by conditional sale of land with constructions in Salkiah, District Howrah, executed on June 2, 1933, by Sambhu Charan Das and Sannyashi Charan Das to secure Rs. 2,750 advanced by Panchu Gopal Srimani, then a minor through his mother as certificated guardian. The mortgage provided that if the amount was not repaid by April 14, 1935, the mortgage would become absolute and mortgagee would be entitled to possession. On June 18, 1934, the mortgagors assigned their interest to Satchindananda Hazra. Default occurred, and the mortgagee filed a suit on July 17, 1945, for foreclosure, praying for a decree for Rs. 5,426/10/6 and that on failure to pay, the right to redeem be annulled and possession delivered. Hazra contested, claiming bona fide purchaser without notice and that the mortgage was void for want of sanction, and sought instalments under the Bengal Money Lenders Act. The trial court rejected these defences and passed a preliminary decree on December 23, 1946. Though the suit was for foreclosure, the decree used the language of a preliminary decree for sale under Order 34 Rule 4(1) CPC, providing that in default of payment the plaintiff would be at liberty to apply for a final decree for sale and for a personal decree for balance. Hazra appealed to the Calcutta High Court, which dismissed the appeal on March 22, 1951, and sent the suit back for a final decree. While that appeal was pending, the respondent Krishna Kumar Nag obtained a money decree against Hazra and in execution purchased 1 bigha 2 cottahs of the mortgaged property at auction on June 23, 1950; the sale was confirmed on February 15, 1951, and the respondent was given possession on May 3, 1951. On March 1, 1954, the original mortgagee applied for a final decree; pending that application, he assigned his decree to the appellants on May 31, 1954. The appellants were substituted on January 5, 1955, and the trial court passed a final decree for foreclosure, debarring redemption and directing delivery of possession. The appellants obtained possession on April 19, 1955. The respondent filed an application under Order 21 Rule 100 CPC for restoration of possession, which was rejected on September 27, 1955; a revision against that rejection was discharged by the High Court on May 12, 1961. The respondent also filed an application under Section 151 CPC, dismissed on February 14, 1956, and an appeal against the final decree on August 23, 1955. The Calcutta High Court by judgment dated November 12, 1961, set aside the final decree on the ground of disconformity between the preliminary decree for sale and the final decree for foreclosure, remanded the matter, and gave the respondent liberty to participate. The appellants obtained a certificate under Article 133 and appealed to the Supreme Court. The Supreme Court considered whether the trial court had power to correct the accidental slip in the preliminary decree and whether lis pendens applied to the court sale. The appellants contended that the preliminary decree contained an accidental error and the court could correct it under Sections 151 and 152 CPC, and that the respondent as purchaser pendente lite was bound by the result. The respondent contended that the final decree must conform to the preliminary decree and that he had a right to redeem. The Supreme Court held that the trial court had no occasion to pass a preliminary decree for sale and that the use of sale phraseology was an accidental slip repeated in the decree; the court had inherent power to correct the error and pass a proper final decree for foreclosure, and the decree did not represent a wrong decision. The Court further held that the doctrine of lis pendens applies to involuntary alienations like court sales, and the respondent, having purchased while the appeal was pending, was bound by the outcome of the suit. Accordingly, the Supreme Court allowed the appeal, set aside the High Court's judgment and decree, and restored the trial court's final decree for foreclosure.
Headnote
A) Civil Procedure - Amendment of Judgments and Decrees - Accidental Slip or Omission - Code of Civil Procedure, 1908, Sections 151 and 152 - The trial court had inadvertently used sale decree phraseology in its preliminary decree though the suit was for foreclosure; such error was clerical/accidental and could be corrected under inherent powers; final decree for foreclosure was valid. Held that the court could correct its own error to give effect to its true intention and the decree did not represent a wrong decision (Paras 24-26). B) Transfer of Property - Lis Pendens - Applicability to Involuntary Alienation - Transfer of Property Act, 1882, Section 52 - A purchase made in execution of a money decree while an appeal against preliminary mortgage decree was pending constituted lis pendens; purchaser bound by result. Held that doctrine of lis pendens applies even to court sales and the respondent could not claim independent right to redeem (Paras 28).
Issue of Consideration
Whether the trial court had power under Sections 151 and 152 of the Code of Civil Procedure, 1908 to correct an accidental slip in the preliminary decree by passing a final decree for foreclosure in a suit for foreclosure; Whether the doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882 applies to court sales and binds an auction purchaser pendente lite
Final Decision
The Supreme Court allowed the appeal, set aside the Calcutta High Court's judgment and decree dated November 12, 1961, and restored the trial court's final decree for foreclosure. The Court held that the trial court's correction was within its inherent powers under Sections 151 and 152 of the Code of Civil Procedure, 1908, and that the respondent was bound by lis pendens as an auction purchaser pendente lite.
Law Points
- Court has inherent power under Sections 151 and 152 of Code of Civil Procedure
- 1908 to correct clerical mistakes or accidental slips to give effect to true intention
- Doctrine of lis pendens under Section 52 of Transfer of Property Act
- 1882 applies to involuntary alienations like court sales
- Purchaser pendente lite is bound by result of pending suit
