Hiro Singh vs Kazi Syed Ahmed Hussain and another

Das, J.—This application is directed against the order of the learned Subordinate Judge of Gaya, dated the 2nd of August, 1921. The petitioner obtained a rent decree as against the opposite party and in execution of that decree put up the holding for sale and purchased it himself. The opposite party took various proceedings to contest the order of the execution Court. On the 7th of June, 1919, his application to have the sale set aside under Order 21, Rule 90, C. P. C. was rejected. On the 12th of June, 1919, the sale was confirmed. On the 23rd of June, 1920, a sale certificate was granted to the decree-holder-auction-purchaser, and on the 24th of June, 1920, a writ of delivery of possession was issued to the petitioner. He went to take delivery of possession but was obstructed by the opposite party. Thereupon the petitioner came to the Court and complained against the obstruction made by the opposite party. That matter was heard before Mr. Saiyid Hasan, where the opposite party relied upon an order of the Subordinate Judge, dated the 18th of September, 1919, which showed that there was a certificate of full satisfaction of the decretal amount due to the decree-holder. Mr. Saiyid Hasan took the view that he could not direct the decree-holder to be put in possession of the property so long as the order, dated the 18th September, 1919, stood. In that view he declined to give any assistance to the decree-holder whatever. Thereupon the decree-holder presented an application u/s 151 of the Code before Mr. Saiyid Hasan by which the decree holder asked the Court to re-call the order passed by it on the 14th of August, 1920. That matter was heard by Mr. Abinash Chandra Nag and that learned Subordinate Judge has now, by his order, dated the 2nd of August, 1921, recalled the order passed by his predecessor on the 14th of August, 1920. It is the validity of the last mentioned order which is in controversy before us in this application.

It was urged by the learned Vakil appearing on behalf of the petitioner that the Court had no jurisdiction to recall the order passed by Mr. Saiyid Hasan on the 14th of August, 1920. It appears to me that this contention is right and must succeed. The learned Vakil on behalf of the opposite party contends that the order dated the 18th of September, 1919, was an ex parte order that was passed behind his back, that he is entitled to show that the certificate of full satisfaction was a forgery and that the Court was entirely deceived by the fraud practised on it by the petitioner. Now, in my opinion, the decree-holder had the opportunity to prove his case before Mr. Saiyid Hasan. It is quite true that Mr. Saiyid Hasan declined to consider that case. If the order of Mr. Saiyid Hasan was an erroneous one, the remedy was to apply to this Court u/s 115 of the Civil Procedure Code. That course was not adopted by the decree-holder and he chose to ask the Court to vacate the order which had been passed by that Court and which he challenged as an invalid order. Now, in my opinion, it is well settled that the Court has inherent power to re-call an order which has not been perfected but that the Court has no power whatever to re-call an order which has been perfected. In other words, while the order is in minutes it is always open to a party to call attention of the Court to that order and ask the Court to recall it: but once the order has been signed by the Court there is no longer any power in a party to invite the Court to re-call that order. This was laid down by Sir George Jessel In Re St. Nazaire Company (1879) 12 Ch. D, 88 = 41 L. T. 110, which was followed by the Calcutta High Court in Peari Dai Debi v. Jotindra Nath Bose (1909) 10 C. L. J. 496 = 4 I. C. 441. The order passed by Mr. Saiyid Hasan was signed by him and the application which has given rise to these proceedings before us was presented to that Court after the order was in fact signed. In my opinion there was no power at all in Mr. Abinash Chandra Nag to recall the order of his predecessor. The application must succeed. The order of the learned Subordinate Judge must be Set aside. The petitioner is entitled to his costs. Hearing fee two gold mohurs.

Coutts, J.:

I entirely agree.