1942 (8) TMI 9 - HC - Indian Laws

Subordinate Judge recalls order due to misrepresentation on decree limitation status

Gajanand Sha and Ors. Versus Dayanand Thakur

The Subordinate Judge was deemed justified in recalling the order due to a misrepresentation by the decree-holder regarding the decree's limitation ... - Issues Involved:1. Jurisdiction of the Subordinate Judge to recall his own order.2. Validity of the amendment under Order 21, Rule 17, Civil Procedure Code (CPC).3. Whether the application for amendment can be regarded as a continuation of the original application.Issue-wise Detailed Analysis:1. Jurisdiction of the Subordinate Judge to recall his own order:The first point raised by the decree-holder was that the Subordinate Judge had no power to recall his own order after it had been made and that the only remedy available to the judgment-debtor was to proceed to a higher Court. The Court found this contention unsound, stating that a Court has inherent jurisdiction to recall and cancel its invalid orders, especially when such orders are based upon a mistake and the party in whose favor the order is made is responsible for the mistake. The Subordinate Judge was justified in recalling the order as it was based on a misrepresentation by the decree-holder that the decree was going to be barred by limitation, whereas it was already barred.2. Validity of the amendment under Order 21, Rule 17, Civil Procedure Code (CPC):The decree-holder contended that the amendment was proper and fell within the scope of Order 21, Rule 17, CPC, which allows for the correction of defects in execution applications. However, the judgment-debtor argued that the amendment was not a mere mis-description but a substitution of a new property. The Court agreed with the judgment-debtor, noting that the property described in the amendment was wholly different from the original property, situated in different villages, thanas, and parganas, with different revenue obligations. The Court concluded that Rule 17 was intended for formal amendments necessary for the identification of the property, not for substituting one property for another.3. Whether the application for amendment can be regarded as a continuation of the original application:The decree-holder argued that the amendment application should be treated as a continuation of the original application, which was filed within time. The Court, however, held that where a decree-holder wishes to correct a mis-description of the property, the application may be regarded as a continuation of the original application. But where a new property is substituted, it must be regarded as a fresh application for execution. The Court cited several cases supporting this view, including Jagannath Das v. Chamu Raghunath and Ram Ran Bijay Prasad Singh v. Kesho Prasad Singh, which held that an application for amendment after the decree had become time-barred cannot be entertained.Conclusion:The Court found that the Subordinate Judge was correct in recalling the ex parte order allowing the amendment, as it was based on a misrepresentation and involved substituting a new property. The amendment did not fall under Order 21, Rule 17, CPC, and the application for amendment could not be regarded as a continuation of the original application. The appeal was dismissed with costs.Separate Judgments:Chatterji, J., agreed with the judgment delivered by Saiyid Fazl Ali, J., and did not provide a separate judgment.