Pradeep Kumar vs State Bank of Travancore

S. Sankarasubban, J.—Both these Civil Revision" Petitions arise from a common order and hence they are being disposed of together. C.R.P.N0.579 of 1997 is filed against the order in E.A.No.181/96inE.P.No.160/91inO.S.No.91/81 of the Sub Court. Thalassery while C.R.P.No.898/97 is filed against the order in E.A.No. 180/96 in the same proceedings.

C.R.P.No.579/97

First respondent Bank is the decree holder. The suit was filed against respondents 2 and 3 for recovery of amount on the basis of mortgage. In this Civil Revision Petition, we are concerned with one item of property. That item is decree schedule item 3. Decree schedule item 3 belongs to the second defendant. Item 3 described in the decree as follows:

"Item No.3:-

District

Cannanore

Sub-District

Tellicherry

Taluk

Tellicherry

Amsom

Thiruvangad

Desom

Vayalalam

Survey

4/4A3

Re-Survey

8/1

Extent

2 Acres 65 cents (1 hector 07 areas 24 sq.meters)

Description:- Jamayil Paracha Kandathinte Vadakke Chirayum Kettinnu Thazhe Kayippadu Enna Peraya parappillotta Kandam Nilavum Nilathilninnu Kilachuyarthi Undakkiya Nadakallum, Nadakkal, Chirakkal, Ithukalil Kizhikoorukalum, Vettikanam Muthalaya Sarvathum.

Thack-1. Boundaries:-

East

Molli Nilam and 2nd Thack Nilam.

South

Molli Nilam.

West

Chirakkara Thazham Nilam.

North

Nadavaramba.

Thack No.2- Boundaries-

East

3rd Thack and Molli Nilam.

South

Molli Nilam.

West

1st Thack.

North

Nadavaramba.

Thack No. 3

Boundaries:-

East

Thodu

South

MolliNilam.

West

Molli and 2nd Thack.

North

Nadavaramba.

The above item was included in the proclamation schedule as item 2. The entire area of this item is.2 acres and 65 cents in R.S.No.8/1 of Thalassery Sub-District, Kannur, District. The extent of 2 acres and 65 cents lies in three thacks and the decree schedule/ gives the boundaries of all the three thacks. In the proclamation schedule, the area of this item was given. But by a mistake only the boundaries of thack 1 were given. The Boundaries of thack 2 and 3 were omitted. Under R.330 of the Civil Rules of Practice, an affidavit was filed by the decree holder stating that this property belongs to the second respondent and its value was Rs. 1 lakh. The above property was sold on 3.6.1993 and the same was purchased by the present revision petitioner. The sale was confirmed on, 20.9.1993 and the 2 acres and 65 cents were delivered to the petitioner on 2.12.1993, Later it was found that since the sale certificate gives the description of only one thack, the petitioner filed the present application, viz., E.A.No.181/96 for amending the sale proclamation, certificate of sale and the delivery-account by incorporating part of the details relating to item No.1 in the decree schedule, Which was omitted in those documents. The second judgment debtor filed objections to the application. The trial Court after considering the objections, dismissed the application.

C.R.P.No.898/97

An application was filed by petitioner to attend the proclamation schedule sale certificate and the delivery account with regard to decree schedule item I. The decree schedule item 1 actually belongs to the first defendant. The decree states that: In the proclamation it was stated that the property belongs to the second defendant. The property was sold and the same was purchased by the petitioner in C.R.P.No.898/96. This property has got an extent of 2 acres and 52 cents. After the petitioner took possession of the property, the first judgment debtor filed O.S.No.51/94 for a declaration that his right, title and interest over decree schedule item I was not passed by the Court sale. It was then that he realised that there was a mistake in the sale certificate. Hence E.A.No. 180/96 was filed under S.153 of the CPC for amending the proclamation schedule, sale certificate and delivery account by substituting the words (Matter in Vernacular - Ed) instead of (Matter in Vernacular - Ed.). The first judgment debtor filed objections to this and after hearing the parties, the court below dismissed the application on the following reasons, In the application for execution of the sale deed it was not alleged that there was a clerical mistake. The petitioner also did not allege any defect or clerical error in the suit filed by him as O.S.No.499/93. The Court took the view that because the suits were pending, it was not necessary to amend the proclamation schedule, sale certificate and delivery account Hence, it took the view that the amendment cannot be made by virtue of any defect or error. Hence the present revisions are filed by the two petitioners challenging the above orders.

Sri P.Sukumaran Nayar learned senior counsel appearing for the petitioners submitted that as a matter of fact, decree schedule items 1 and 3 were proclaimed for sale and they were intended for sale. Any mistake that has happened in the proclamation or in the sale certificate is an error or defect arising out of an accidental slip or omission. He further submitted that there was no-case that item 1 belongs to the second defendant. Item No. 1 actually belongs to the first defendant. This is clear form the mortgage as well as the plaint schedule and the decree schedule. The mistake happened when the proclamation was drawn wherein it was stated that the property belongs to the second defendant. So far as item No.2 is concerned, his case is that the extent of property was stated to be 2 acres and 65 cents. The value of the property was given as Rs. 1 lakh. The only mistake that happened was that the details of item 2 and 3 were not given. He further submitted that the defendants had no case at any time that the entire properties were not sold or that any loss has been occasioned to them by misdescription in the proclamation schedule. The further submission is that the entire extent of property was delivered over to the petitioners. This itself shows that the decree schedule properties were intended to be sold.

On the other hand, learned counsel appearing for the judgment debtors submitted that the auction purchaser purchased the property knowing that there may be defects in the title to the property. They further argued with stress that the provisions regarding sales itself say that it is at the auction purchaser''s risk that the properties were purchased. The further contention is that the auction purchaser gets title only to the property that is conveyed under the sale and which is furtherance of the proclamation schedule. If at all there is any mistake in the proclamation schedule and consequently in the sale certificate, the petitioners have to suffer. They further contended that if the properties are now reauctioned, it will fetch a very high price.

After hearing the counsel on both sides, I am of the view that the order passed by the Court below cannot be sustained. In such matters, the court has to take great care in seeing that justice is done to the parties. It is nobody''s case that the properties that were brought to sale were not mortgaged properties. The decree is clear regarding the mortgaged items. There are four items in the decree, item Nos. 1 and 3 were proclaimed at the proclamation schedule as item Nos. 1 and 2. Item I actually belongs to the first defendant. But by mistake, it was stated in the proclamation that item 1 belongs to the second defendant. So far as item 3 is concerned, it was included in item No.2 in the proclamation schedule. The area was decided property and the boundaries for the entire areas were given. Further it was stated that what was being sold was the entire interest of the second defendant in the 2 acres and 65 cents. The only error committed was that the details of the first thack alone was given. The details of thack Nos.2 and 3 were not given. In this context, it is also pertinent to note that the execution petition also gave the details of the properties to be sold, which also showed that thack Nos.2 and 3 were to be sold and also what was sold in the first item was the interest of the first judgment debtor.

Further, in this case, the decree holder has filed an affidavit under R.330 of the Civil Rules of Practice stating the extent of area and the interest of the person in the property concern. This coupled with the fact that the entire items 1 and 2 taken possession by the auction purchaser shows that the entire extent as described in the decree was sold in auction. Even though in the proclamation schedule it was noted that item 1 belongs to the second judgment debtor, no objection was raised either by the first judgment debtor or by the second judgment debtor to set at right that mistake. There is no contention that because of that mistake item 1 fetched only a lesser rate. Thus, taking the entire matter into consideration it is clear that it was decree schedule items 1 and 3 that were sold and that there was no injury caused to judgment debtors 1 and 2 by the sale of the properties, even though there was misdescription regarding items 1 and 2.

The next question is whether the court has got power under S. 151 and 153 of the CPC to correct sale proclamation, sale certificate and delivery account. In Sobla and Another Vs. Jethmal, - certain properties were attached and/sold in execution of money decree. The properties were misdescribed in the execution application and the mistake was repeated in the warrant of attachment and even in the sale certificate. When an application for possession under 0.21 R.94 of the CPC by the auction purchaser was dismissed the decree holder applied under S. 151 of the CPC for amendment of the sale certificate. It was held by the court as follows:

"It is a mistake made in giving the boundaries in the execution application which was repeated in the warrant of attachment, the sale proclamation and the sale certificate. I see no reason why this mistake cannot be corrected on an application under S. 151 C.PC. It is in the ends of justice that this injury should be remedied and needless expense and inconvenience to parties avoided."

In Aziz Ullah Khan and Others Vs. Court of Wards, - by an accidental slip the mortgaged property was described in a mortgage deed as being situated in Mauza "Nagla Zarnania Nawadiya" the correct name of the village being "Nawadiya Zarnania Nagla". This mistake was repeated in the plaint, preliminary and final decrees, execution application and sale certificate. It was not noticed until the revenue Court rejected the decree holder purchaser/s application for mutation on the ground that the auction purchaser had not purchased the property in Nawadiya Zarnania Nala. The decree holder then filed an application to amend the decree, under S. 152 of the Code of Civil Procedure. The matter came up before a Division Bench of the Allahabad High Court. The Court observed as follows:

"... the power of the Court to make corrections necessary for the ends of justice is not confined only to powers exercisable under S. 152. Extensive powers may be exercised also under Ss. 151 and 153. We consider that this is eminently a case in which the accidental slip should be corrected as the contention is necessary for the ends of justice".

In AIR 1934 29 (Lahore) - the boundaries of the mortgaged property were not correctly described in the mortgage suit due to inadvertence. The mistake was carried in the decrees as well as in the sale certificate. When an application for amendment was filed for correction of decree and sale certificate, his Lordship Justice Dalip Singh of the Lahore High Court held as follows:

"It is clear that the sale certificate must be based on the sale proclamation and this is the basis of discovering what has been sold. Assuming that the identity of the property was not in doubt the question still remains whether the misdescription of the items of property in the sale proclamation did not materially affect the price realised and whether in the circumstances it is fair to set aside the sale leaving the decree holder to pursue his remedies under the amended decree, or whether the misdescription made any material difference and therefore, the sale proclamation should also be amended. As it is a mere case of misdescription I think the sale proclamation can be amended in the sense that it is competent for the Court so to do. But the question whether the misdescription affected the sale price or not is question of fact and there has been no decision on this material point.....The onus of the issue will therefore be on the parties and the Court when coming to its decision will bear in made the above remarks. If the Court comes to the conclusion that the misdescription made no material difference in the sale price, it will amend the sale proclamation and the sale certificate as directed by the decree holder".

In our case, there was no contention that the misdescription has affected the sale price.

In Brahmananda Choudhury Vs. Prahlad Panigrahi and Another, the petitioner obtained a money decree and he filed execution case for realisation of die decretal dues by attachment and sale of the immovable properties of the judgment debtor. Out of the five lots of immovable properties attached and advertised for sale, only lot Nos.4 and 5 were put to sale and the petitioner, purchased the same with the permission of the court. These two lots of properties were situated at Mouza Naldhalia. This was correctly stated in the execution petition, the attachment process, the sale proclamation and the newspaper. But in the sale certificate issued by the Court, the name of the mouza was wrongly mentioned as Baipada. On 20.2.1973 the petitioner filed an application under S. 151 of the CPC for correction of the mistake in (he sale certificate, which was dismissed by the Munsiff. Thai order was challenged in revision. In considering the question, the learned Judge of the Orissa High Court referred to the decision of Lord Wyslon in Pcttaclu Chcrtiar Vs. Sangili Vira Pandia Chinnaiambiar (1887) ILR 10 Mud. 241 (PC). His Lordship held thus:

"The real lest in a case of this type - The question were - what did the Continent to self; and what did the purchaser understand that he bought?

After quoting the above decision, the learned Judge of the Orissa High Court held thus:

"The sale is an offer and acceptance; the offer is made by the Court and is advertised by the proclamation of sale.... There is no question of the Decree holder Auction Purchaser attempting to obtain a property-which was not put up for sale".

In Yerramilli Satyanarayana Rao and Others Vs. Kandukuri Purnayya and Others, - Pandalai, J. held as follows:

"The object of empowering the Court to correct decrees and orders is to correct errors, and if it may be shown that an alleged mistake fails within the class of errors dealt with by S. 152, it seems to put an unnecessary hindrance upon the power to do justice which the, section, gives to say that the only mistakes of which the Court can take cognizance are those made either in the plaint or in subsequent documents in Court.

There is nothing which limits the power of the Court under S. 152 to correcting errors, mistakes and omissions, which arise in the suit. Nothing prevents the Court from doing justice in an appropriate case where such mistakes arose by reason of copying an erroneous document into the plaint"

The learned Judge referred to the observation by Duchworth, J. in Mung chit Hlaing Vs. N.A.F.L.M.Chetty- AIR 1924 Rang. 104 - which staled thus:

"There never was, apparently, any dispute as to the actual property mortgaged. In these circumstances, I consider that the District Court was right in making use of the Court''s inherent power under S. 152."

In this context, it is apposite to refer to the following observations of Lord Justice Lindley In re Swire, Mcllor Vs. Swire - 30 Ch.D.239.

"This case has raised a discussion of sonic importance because it was contended that when once the order of the Court was passed and entered, it could not be put right even though, as drawn, it did not express the order as intended to be made. I protest against any such notion. There is no such magic in passing and entering an order as to deprive the court of jurisdiction to make its own records true, and if an order as passed and entered, does not express the real order of the Court, it would, as it appears to me, be shocking to say that the party aggrieved cannot come here to have the record set right''''.

In the same case, Lord Justice Bowen observed as follows:

"I think the true view is, as staled by Lord Justice Cotton, that every court has inherent power over its own records as long as those records are within its power, and that it can set right any mistake in them. It seems to me that it would be perfectly shocking if the court could not rectify an error which is really the error of its own minister. An order, as it seems to me, even when passed and entered, maybe amended by the Court, so as to carry out the attention and express the meaning of the court at the lime when the order was made, provided the amendment be made without injustice or on terms which preclude injustice".

Lord Macnaghten in Hatton Vs. Harris - (1895) A C.547- held as follows:

"Everything is possible. But one must use one''s commonsense and there are some mistakes, which it is hardly decent to attribute lo the Court".

In the light of the above decisions, it cannot be said that the mistake crept in the sale proclamation, sale certificate and delivery account cannot be corrected. The parties were aware as to the property mortgaged for which property a decree was passed and which was directed to be sold. Hence, I set aside the impugned order, allow the applications filed by the petitioners and direct the court below to make the required corrections.

Civil Revision Petitions are allowed.