Saheb Lal Bhagat and others vs Mohammad Ishaque and others

Courtney-Terrell, C.J.—The case out of which this second appeal arises is of a peculiar nature and the decision has given us some anxiety. The facts are as follows:

The defendants first party had on 20th December 1926, brought a mortgage suit claiming Rs. 632 together with interest against all the defendants in that suit including the present plaintiffs and the defendants second party. A settlement was arrived at and a petition of compromise was filed. The terms of the compromise (which was the subject of a preliminary decree dated 23rd December) were that there should be a decree against the persons, who are now defendants second-party for Rs. 300 to be paid within a period of five months and that "if the entire decree money" should not be paid within the stipulated period there should be a mortgage decree against all the defendants and that the plaintiffs (now defendants first-party) would be at liberty to apply for a final decree and to realise "the entire decree money" by sale of the mortgaged property. Notice was given to the defendant parties in the suit for the preparation of a final decree which was duly passed on 22nd December 1927. Some one, and it is not clear who seems to have brought to the notice of the Munsif the wording of the preliminary decree, intimating that in the event of default in the payment of Rs. 300 within five months it was not clear for what sum the decree would be passed against all the defendants in the suit. It appears that the preliminary decree was amended by insertion of Rs. 778-12-9 as the amount of the decree which was payable by all the defendants. The final decree was drawn up on the same lines on 11th January 1928. The Munsif on his own motion and without notice to the defendant parties on 9th January 1928 made an order as follows:

It has been brought to my notice that in the preliminary decree there is an omission, as to the amount of claim and cost to be paid in the event of default in payment of Rs. 300 on 23rd May 1927 is not stated. Let the preliminary decree be amended.

The said sum of Rs. 778-12-9 was the full amount claimed by the plaintiffs in the suit. The lower Courts held, and we agree with them, that the parties intended and the vernacular used in the compromise petition and in the original preliminary decree meant that in the event of failure to pay the stipulated sum of Rs. 300 that sum and no other should be recoverable against all the parties to the suit. In other words failure to pay within the stipulated period would result in an extended field for the recovery of the sum of Rs. 300 and not an increase of the pecuniary liability. The Munsif was moved by the present plaintiffs to rescind his order of amendment but refused and on revision a Judge of the High Court sitting singly held that as the Munsif had jurisdiction the decision could not be attacked. In our opinion this decision was erroneous and unfortunate but the Rs. 300 not having been paid the mortgaged property was put up for sale and purchased by the decree-holder on 12th October 1928. The plaintiffs had filed an objection under S. 47, Civil P.C., but this also was rejected and rightly so because the execution Court had no power to go behind the decree. The present plaintiffs did not exercise their undoubted right of appeal from the final decree but on 23rd December 1929 began this suit asserting that the order for amendment was erroneous and a gross mistake of the Court, which had no power to amend the terms of the compromise decree and claiming therefore that the decree should be rectified and that the sale and delivery of possession in execution should be set aside. In the alternative they claimed a decree for Rs. 520 odd and damages. They also alleged that the amendment of the decree had been obtained by fraud on the part of defendant first-party. The Munsif held that the plaintiffs had failed to prove any fraud on the part of any one in the preparation of the amended preliminary decree or of the final decree and that the amendment was merely the result of a gross mistake only. With the finding that there had been no fraud the Subordinate Judge has not interfered, although he has not expressly affirmed it. The finding therefore stands.

It is contended on behalf of the defendants that the Court had no jurisdiction to set aside the decree so amended and further that as there had been no appeal from the final decree the question of the validity of the amendment must be taken as res judicata and that the suit was barred.

In so far as the question of res judicata is concerned, it is clear that the consent decree as originally drawn up was not arrived at after a proceeding in which the defendants either raised or might have raised the contention that the decree should be for Rs. 300 only and not for Rs. 778. The amendment was made after the decree had been passed and the validity of the decree for Rs. 778 was not the subject of decision in the presence of the plaintiffs. I would accordingly hold, in agreement with the lower Courts, that the defence of res judicata fails. Moreover the fact that the plaintiffs petitioned unsuccessfully for revision of the order of amendment does not constitute res judicata within the meaning of S. 11, Civil P.C., because the learned Judge in revision rejected the application on the ground that the Munsif had not exceeded his jurisdiction and not on the merits of the real question.

In Mt. Gulab Koer v. Badshah Bahadur, (1909) 10 CLJ 420 = 2 IC 129 at p. 447, Mookerjee, J., said:

The fact therefore that the plaintiff has failed in the application for review is not a sufficient ground to debar her from the prosecution of her remedy by a regular suit. As we have previously seen, the order upon the application for review of judgment does not operate as res judicata under S. 13 of the Code of 1882, nor does the application for review bar the present suit on the principle of election of remedies, as there is no inconsistency between the remedies by way of review and by way of a fresh action. This conclusion is consistent with the well-recognized principle that, although ordinarily it is not open to a litigant to have recourse to two different proceedings for enforcement of his right, there are cases in which different concurrent remedies may be pursued without trenching upon the rule of res judicata or the doctrine of election of remedies ; there is however subject to the restriction that, if the party aggrieved is successful in one proceeding, the judgment absorbs all his other judicial remedies.

These observations apply just as much to the contention that the suit is barred by reason of the plaintiff''s neglect to appeal from the final decree as amended, as it does to the contention based upon the previous attempt to set aside the amendment in revision and there has not been in either case any election between inconsistent remedies.

It is clear that a consent decree is like any other contract and that such a contract may be set aside on the ground that its execution has been obtained by fraud or gross-mistake, notwithstanding that the contract has received judicial sanction in the form of a decree. Moreover, when a decree is rectified on the ground of mistake, the money paid under such a decree is also recoverable and the proceedings by way of execution of the decree (more especially when they have been taken by the party who was benefited by such gross mistake) can be set aside, though ordinarily money paid in obedience to a legal process is irrecoverable. Gross mistake is similar in its effect to fraud or unconscionable dealing. These principles are amply demonstrated by the decision of this Court in Sreenath Das v. Ghanshyam Naik, 1918 Pat 185 = 46 IC 534 = 3 Pat LJ 465. It has been argued that in this case the contract had been carried out and the money payable under the amended decree had been paid and reference was made to the case of Caird v. Moss, (1887) 33 Ch D 22 = 55 LJ Ch 854 = 5 Asp MC 565 = 35 WR 52 = 55 LT 453. But in that case an attempt was made to get back the money paid under a judgment which was not impeached and which was right upon the materials before the Court. In my opinion that case has no application.

The true principles are to be found in the decision of the Court of appeal in Wilding v. Sanderson, (1897) 2 Ch 534 = 66 LJ Ch 684 = 45 WR 675 = 77 LT 57. In that case an order had been made by consent based upon and intended to carry out an agreement come to between the parties. One of the parties sought in the Courts for a particular construction of the agreement but the decision was against him. He then sued to set aside the contract on the ground of mistake in the drawing up of the order and it was held that he was entitled to succeed in his suit.

In our opinion it is not open to the defendant first-party to take advantage of the decree which was passed as a result, of the gross mistake of the Munsif. Nor is he entitled to rely upon his purchase at the auction sale made in pursuance of that decree. The judgment of the lower Courts are correct and this appeal should be dismissed with costs.

A plaintiff is however not entitled to equitable relief unless he is prepared to behave in an equitable manner himself. The decrees of the lower Courts will therefore be varied to this extent, the sale will not be set aside unless the respondents pay to the appellant''s on or before 22nd December 1934 the amount of the mortgage decree as it stood before amendment together with the bond rate of interest up to 9th June 1928 and thereafter at the rate of six per cent to the date of payment. The appellants will pay the costs of this appeal.

Agarwala, J.

I agree.