Case Note & Summary
The dispute arose from a mortgage by conditional sale executed on June 2, 1933 by Sambhu Charan Das and Sannyashi Charan Das in favour of Panchu Gopal Srimani, then a minor, to secure repayment of Rs. 2,750. The mortgaged property was land measuring 2 bighas and 18 cottahs with a construction, situated in Salkiah, District Howrah. On June 18, 1934, the mortgagors assigned their right, title and interest to Satchindananda Hazra. The mortgagors and Hazra failed to pay the mortgage amount by the due date, so the mortgagee filed a suit on July 17, 1945 for enforcement of his rights, praying for a decree for Rs. 5,426/10/6 and for annulment of the right to redeem and possession of the mortgaged property. The trial court rejected Hazra's contentions and passed a preliminary decree on December 23, 1946, which, despite the suit being for foreclosure, provided for sale in default of payment, following the phraseology of Order 34 Rule 4(1) CPC. Hazra appealed to the High Court, which dismissed the appeal on March 22, 1951, and sent the suit back for a final decree. While the appeal was pending, the respondent obtained a money decree against Hazra and in execution purchased the mortgaged property at a court sale on June 23, 1950, confirmed on February 15, 1951, and was given possession on May 3, 1951. On March 1, 1954, the mortgagee applied for a final decree, and pending that application assigned his rights to the appellants on May 31, 1954. The trial court substituted the appellants and on January 5, 1955 passed a final decree for foreclosure, declaring the defendants absolutely debarred of all rights of redemption and directing delivery of possession. On April 19, 1955, the appellants obtained possession. The respondent then filed an application under Order 21 Rule 100 CPC for restoration of possession, which was rejected on September 27, 1955, and also filed an application under Section 151 CPC to set aside the final decree, which was dismissed on February 14, 1956. The respondent also filed an appeal in the High Court against the final decree without impleading the mortgagors or Hazra. The High Court by judgment dated November 12, 1961 set aside the final decree, observing that there was disconformity between the preliminary decree for sale and the final decree for foreclosure, and remanded the matter with liberty to the respondent to participate. The appellants, being the assignees of the mortgagee, appealed to the Supreme Court under Article 133(1)(a) and (b). The Supreme Court held that the High Court's order was a final order and the certificate was proper. On merits, the Court held that the trial court had passed the preliminary decree for sale through an accidental slip or inadvertence and had the inherent power under Sections 151 and 152 CPC to correct its own error and pass a proper final decree for foreclosure as intended. The Court further held that the principle of lis pendens under Section 52 of the Transfer of Property Act applies even to involuntary alienations like court sales, and the respondent, having purchased the mortgaged property pendente lite, was bound by the result of the suit and had no independent locus standi to challenge the final decree or claim a right of redemption. Accordingly, the appeal was allowed, the High Court's judgment and decree were set aside, and the trial court's final decree for foreclosure was restored.
Headnote
A) Civil Procedure - Correction of Accidental Slip - Inherent Power of Court - Code of Civil Procedure, 1908, Sections 151 and 152 - The trial court inadvertently passed a preliminary decree for sale in a suit for foreclosure, using phraseology proper in a mortgage decree for sale, and later corrected the mistake by passing a final decree for foreclosure. Held that the court has inherent power to correct a clerical mistake or an error arising from an accidental slip or omission and to vary its judgment so as to give effect to its meaning and intention; the error was an accidental slip, not a wrong decision, and the trial court was competent to pass the final decree for foreclosure as originally intended (Pages 1-5). B) Transfer of Property - Doctrine of Lis Pendens - Applicability to Court Sales - Transfer of Property Act, 1882, Section 52 - An auction purchaser bought the mortgaged property while an appeal against the preliminary decree was pending in the High Court. Held that the principle of lis pendens applies even to involuntary alienations like court sales, and the purchaser was therefore bound by the result of the mortgage suit and could not claim an independent right to redeem or challenge the final decree (Pages 4-5). C) Civil Procedure - Finality of High Court Order - Certificate under Article 133 - Constitution of India, Article 133(1)(a) and (b) - The High Court set aside the final decree and remanded the matter with liberty to the respondent to participate, thereby finally deciding the question of locus standi and reopening the question of redemption. Held that the High Court's order was a final order, and the certificate granted to the appellants under Article 133 was proper (Pages 2, 5). D) Civil Procedure - Locus Standi of Pendente Lite Purchaser - Parties Bound by Decree - Code of Civil Procedure, 1908, Section 151 - The respondent, being an auction purchaser pendente lite, had no independent locus standi to challenge the final decree or seek to alter the preliminary decree from foreclosure to sale, as he was bound by the lis pendens and the result of the suit (Pages 4-5).
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 mistake in a preliminary decree for sale and pass a final decree for foreclosure in a mortgage suit; whether the doctrine of lis pendens under Section 52 of the Transfer of Property Act, 1882 applies to involuntary alienations like court sales; whether a pendente lite auction purchaser has locus standi to challenge the final decree; whether the High Court's order setting aside the final decree and remanding the matter was a final order for the purpose of Article 133 of the Constitution.
Final Decision
The Supreme Court allowed the appeal, set aside the judgment and decree of the High Court dated November 12, 1961, and restored the trial court's final decree for foreclosure. The Court held that the trial court had the power to correct the accidental mistake in the preliminary decree and pass a final decree for foreclosure as originally intended, and that the respondent, being a pendente lite auction purchaser, was bound by the doctrine of lis pendens and had no right to challenge the final decree or claim redemption.
Law Points
- Inherent power of court to correct clerical mistakes
- Section 152 CPC
- Section 151 CPC
- Doctrine of lis pendens applies to involuntary alienations
- Final decree must conform to preliminary decree
- Pendente lite purchaser bound by result of suit
- Correction of accidental slip not a review
- Auction purchaser has no independent right to redeem
