Bisheshwar Pratap Narain Sahi vs Asarfi Singh

Das, J.—The petitioners were the plaintiffs in an action to recover possession of certain properties known as Sursand Raj Estate. They entered the properties in four schedules, properties in Schedules III and IV being properties claimed by Asarfi Singh as his mokarrari. "With reference to the property entered in Schedule III there was a previous litigation between the parties, Asarfi Singh claiming those properties as his mokarrari ana the petitioners disputing the claim of Asarfi Singh. The Court of first instance decided the suit in favour of Asarfi Singh, in other words, he held that Asarfi Singh had a mokarrari interest in those properties. In appeal the decision of the Court of the first instance was set aside and this Court in second appeal upheld the decision of the lower appellate Court. It appears that Asarfi Singh has obtained leave to appeal to his Majesty in Council against the decision of this Court.

Now, it is admitted that the decision of the Judicial Committee will govern the rights of the parties so far as Schedule III and IV properties are concerned; and before the learned Subordinate Judge the parties seem to hare entered into some sort of agreement on this point. The learned Subordinate Judge in dealing with the Schedule III and IV properties says as follows:

It has therefore been proposed by both parties that these issues may be left undertermined by this Court and in case of plaintiff''s success a decree may be passed in respect of these properties subject to the decision of their lordships of the Privy Council. I agree with the proposal made by the parties and leave this point undertermined.

The decree of the learned Subordinate Judge with reference to the schedule III and IV properties is in these terms:

Let it be declared that the plaintiffs as Bandhus of the late Babu Kishun Pertap Indra Narayan Singh and by virtue of the agreement dated the 9th May 1908 are entitled to possession of the properties described in Schedules I to IV of the plaint, but as regards the properties described in Schedules Nos. III and IV they are entitled to possession subject to the decision of the Privy Council.

And in dealing with the question of mesne profits the learned Subordinate Judge expressed himself in these terms:

Let it be further declared that the plaintiffs are entitled to mesne profits with respect to the property of Schedule IV, but subject to the decision of the Privy Council, for three years before suit and for subsequent period until delivery of possession or three years after the decree whatever event first occurs.

In my opinion there is no doubt whatever that the learned Subordinate Judge gave the plaintiffs a decree in regard to Schedule III and IV properties, but provided that that decree would have no operation if the Privy Council should ultimately allow the appeal of Asarfi Singh.

The petitioners applied for execution of the decree before the learned Subordinate Judge who actually passed the decree. The learned Subordinate Judge allowed execution not only in respect of Schedule 1 and II properties but also in respect of Schedule III and IV properties. Thereupon the opposite party Asarfi Singh applied for restitution u/s 144 of the CPC and for an order; that the properties should be re-delivered to him and to a Receiver who had been appointed in a previous litigation. His view apparently was that there was no decree in respect of Schedule III and IV properties and that the decree could not be executed so as to entitle the plaintiffs to recover possession of Schedule III and IV properties. This application was made, not before the learned Subordinate Judge who dealt with the case and passed the decree, but before another Subordinate Judge who succeeded the first mentioned Subordinate Judge. The learned Subordinate Judge in dealing with the application of Asarfi Singh conceded that Section 144 had no application to the facts of the case, but he thought that he had complete jurisdiction to recall the order which had been passed by his predecessor-in-office u/s 151 of the Civil Procedure Code. The order which he ultimately passed was in these words:

I therefore allow the application u/s 151 of the CPC because in my opinion possession over these properties could not be delivered before the decision of the Privy Council. The Receiver and the applicant will be restored to the possession of schedule 3 and 4 properties.

In my opinion the order of the learned Subordinate Judge cannot be supported. Section 151 of the CPC gives him no power whatever to recall an order which had been passed by his predecessor-in-office. The application for execution was an application in accordance with law made before a Subordinate Judge who had jurisdiction to deal with that application. Rightly or wrongly the learned Subordinate Judge dealing with the application allowed execution to proceed against Schedule III and IV properties. If he was wrong in allowing execution to proceed against Schedule III and IV properties, Asarfi Singh, who was a party to the suit, could have appealed against that order under the provision of the Civil Procedure Code. Where there is a remedy by way of appeal, it is, in my opinion, an extraordinary thing for a learned Judge to exercise what he calls his inherent power and to set aside an order passed by his predecessor in office. In my opinion he arrogated to himself a power which did not belong to him but which, properly speaking, belonged to an appellate Court. Order XX Rule 3 of the CPC provides that "the judgment shall be dated and signed by the Judge in open Court at the time of pronouncing it and, when once signed, shall not afterwards be altered or added to, save as provided by Section 152 or on review". The Rule embodies the well-known principle that after the judgment is entered and signed the Court pronouncing the judgment is no longer competent to deal with the subject matter of that judgment except on review or u/s 152 of the Code. In other words he is entitled to correct clerical or arithmetical mistakes in the judgment or errors arising from any accidental slip or omission and he is also entitled to review the judgment if there are grounds for review, but otherwise he is not entitled to touch that judgment in any way. In my opinion the learned Subordinate Judge had no jurisdiction whatever u/s 151 of the Code to recall the order passed by his predecessor-in-office.

I would accordingly allow this application and set aside the order passed by the Court below. The petitioners are entitled to the costs of this application. Hearing fee five gold mohurs.

Foster, J.

I agree.