# SAMARENDRA NATH SINHA & ANR v. KRISHNA KUMAR ~AG - **Citation:** [1967] 2 S.C.R. 18 - **Court:** Supreme Court of India - **Decided:** 1967 - **Bench:** K. N. Wanchoo, J. M. Shelat A:-Id G. K. Mitih - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/samarendra-nath-sinha-anr-v-krishna-kumar-ag-3989 - **Pages:** 11 ## Headnote B Code of Civil Procedure (Act 5 of 1908), ss. 151, 152-Court ml<- tak !'nly passing preli1ninary decree for sale in suit for forecio.vure-Sub- $equent/y correcting 111istake and paS,\ing final decree for foreclo.n1rePower ro corrrct such error. Transfer of Property Act ( 4 of l 882), s. 52- Purchase of 1nortgaged propt'r( .. ' pcnd-.!nlc life-A f'f'licability of doctriur vj lis pcndcns. A piece of land wilh some con~tructions on it situated in district Howrah ~·as mortgaged by conditional sale. The mortgage deed provided that in c;isc of default in payment of the mortgage amount by the due date the .. ate vw'ould bccornc absolute. Subsequently the mortgagor sold hi.; intcrc~t 10 l-1. As the mortgage :..imount \vas nol paid by the due date the mnr1g;1gec filed ;1 'iUil for foreclosure which \Ya'S decreed. The tri;:tl court p;J<;'.>ICd a preliminary decree orn 10 pass a preliminary decree for sale and that it was lhrough an accidental slip or inadvertence that in c D E F G H A B c D E F G H S. N. SINHA V. K. K. NAG (She/at, J.) 19 the penultimate part of its judgment the court used the phraseology proper in a mortgage decree for sale. Once this error had crept in the judgment it was repeated in the preliminary decree. This being the position the trial court had the power under s. 151 and s. 152 of the Code of Civil procedure to correct its own error which had crept in the judgment and the preliminary decree and to pass a proper final decree. for foreclosure as intended by it. (24 E, 25 E, HJ (iii) On the facts of the case it could not be gaid that the decree represented a wrong decision of the Court. [26 D-E] (iv) The principle of lls pendens applies even to involuntary alienations like court sales. The respondent having purchased the mo ## Text SAMARENDRA NATH SINHA & ANR. v. KRISHNA KUMAR ~AG November I, 1966 A [K. N. WANCHOO, J. M. SHELAT A:-ID G. K. MITIH, JJ.] B Code of Civil Procedure (Act 5 of 1908), ss. 151, 152-Court ml<- tak !'nly passing preli1ninary decree for sale in suit for forecio.vure-Sub- $equent/y correcting 111istake and paS,\ing final decree for foreclo.n1rePower ro corrrct such error. Transfer of Property Act ( 4 of l 882), s. 52- Purchase of 1nortgaged propt'r( .. ' pcnd-.!nlc life-A f'f'licability of doctriur vj lis pcndcns. A piece of land wilh some con~tructions on it situated in district Howrah ~·as mortgaged by conditional sale. The mortgage deed provided that in c;isc of default in payment of the mortgage amount by the due date the .. ate vw'ould bccornc absolute. Subsequently the mortgagor sold hi.; intcrc~t 10 l-1. As the mortgage :..imount \vas nol paid by the due date the mnr1g;1gec filed ;1 'iUil for foreclosure which \Ya'S decreed. The tri;:tl court p;J<;'.>ICd a preliminary decree orn 10 pass a preliminary decree for sale and that it was lhrough an accidental slip or inadvertence that in c D E F G H A B c D E F G H S. N. SINHA V. K. K. NAG (She/at, J.) 19 the penultimate part of its judgment the court used the phraseology proper in a mortgage decree for sale. Once this error had crept in the judgment it was repeated in the preliminary decree. This being the position the trial court had the power under s. 151 and s. 152 of the Code of Civil procedure to correct its own error which had crept in the judgment and the preliminary decree and to pass a proper final decree. for foreclosure as intended by it. (24 E, 25 E, HJ (iii) On the facts of the case it could not be gaid that the decree represented a wrong decision of the Court. [26 D-E] (iv) The principle of lls pendens applies even to involuntary alienations like court sales. The respondent having purchased the mortgaged property while the appeal against the preliminary decree in respect of the property was pending in the High Court, the doctrine of lis pendem must apply to bis purchase and he was therefore bound by the result of the suit. (28 B-DJ Cate law considered. C1v1L APPELLATE JURISDICTION. Civil Appeal No. 707 of 1964. Appeal from the judgment and decree dated ·November 12, 1961, of the Calcutta High Court in Appeal from Original decree No. 285 of 1956. Niren De, Addi. Solicitor-General, N. R. Basu and E. Udayarat· nam, for the appellants. P. K. Chatterjee, B. C. Mitra and P. K. Bose, for the respondent. The Judgment of the Court was delivered by Shelat, J, One Sambhu Charan Das and Sannyashi Charan Das owned 2 bighas and 18 cottahs of land with a construction standing thereon, , situated in Salkiah, District Howrah. By a deed of mortgage by conditional sale dated June 2, 1933 the said owners mortgaged the said property to secure repayment of Rs. 2,750 advanced to them by Panchu Gopal Srimani, then a minor through his mother, Prabhavati Dassi as his certificated guardian. The said mortgage, inter alia, provided that if the mortgage amount was' not repaid by the due date i.e., April 14, 1935 the mortgage owould be considered as a deed of absolute sale and the mortgagee would be entitled to take possession of the property. On June 18, 1934 the mortgagors assigned their right, title and interest in the said property to one Satchindananda Hazra. As the said mortgagors or the said, Hazra failed to pay the said mortgage amount on the due date, the mortgagee filed a suit on July 17, 1945 for enforcement of his rights impleading the two mortgagors and !,he said Hazra as defendants. In that plaint the mortgagee prayed for a decree for Rs. 5,426/10/6, being the amount then due under the s11id mortgage and for fixing the time for payment of the I 20 SUPREME COURT REPORTS [l 967) 2 S.C.R. said amount. The plaint also contained a prayer that on failure to pay the decreetal amount within the time fixed by the court "the right of the defendants to redeem the mortgage may be annulled and a decree may be passed giving possession of the mortgaged property." The mortgagors filed a written statement claiming that they should be permitted to pay the mortgage amount by inst.alments as provided by the Bengal M(!ney Lenders Act. The said Hazra also filed a written statement all¢aing that he was a bona fide purchaser without notice of the saiQ.. mortgage. The two mortgagors did not contest the suit and it was only Hazra who contested it contending also that as the loan undC'fthe said mortgage was advanced by the guardian of the said Pa11clrn, then a minor, without obtaining sanction of the Distfict Judge, the said mortgage was null and void. The Trial Court rejected these contentions and passed a preliminary decree on December 23, -1946. The said decree, inter alia, provided that the mortgage amount due was Rs. 5,426/10/6 and that if the said amount together with costs of the suit was not paid by the defendants within six months from the date of the decree the plaintiff would be at liberty to apply for a final decree. Though the suit was a foreclosure suit the preliminary decree passed by the Trial Court was one under 0·34 r. 4(1) of the Code of Civil Procedure inasmuch as it provided that in default of payment as aforesaid the plaintiff would be at liberty to apply to the court for a final decree for sale and that if the sale proceeds on such sale were not sufficient for payment of the decreetal amount the plaintiff would be at liberty to apply for a personal decree against the defendants for the balance. Against the said preliminary decree the said Hazra filed an appeal in the High Court at Calcutta raising two contentions, (1) that the said mortgage was void on account of sanction not having been obtained by the guardian of the mortga~e before advancing the said loan and (2) that he should be permitted to pay the decreetal amount by instalments. The High Court negatived these contentions and by its judgment and decree dated March 22, 1951 dismissed the said appeal and the suit was sent back to the Trial Court for passing a final decree. While the said appeal was pending the respondent obtained a money decree against the said Ha:j:ra and commenced execution proceedings against him. An attachment was levied on the said mortgaged property and thereafter on June 23, 1950 the right, title and interest of the said Hazra was put up for sale. The respondent was the auction purchaser and the court confirmed the said sale by an order dated February 15, 1951. The said auction sa\e was in respect of 1 bigha and 2 cottahs out of the ~aid mortgagee property. According to the respondent he was !lJVen possession of the said property on May 3, 1951. A B r c D E F G H A B c D E G H s. N. SINHA v. K. K. NAG (She/at, J.) 21 On March I, 1954, the said motigagee, Panchu Gop·al Srimani, applied for a final decree in the said suit. Pending this application, he assigned his right in the said decree in favour of the appellants on May 31, 1954. On July l, 1954 the appellants applied to the Trial Court for being substituted in place of the said Panchu Shri· mani. The Trial Court directed notices t.o be issued on the defendants, that is, the' said two mortgagors and the said Hazra and they having raised no objection the court by an order dated January 5, 1955 ordered substitution and then passed a final decree. The said decree, after reciting that the said decretal amount was not paid within the time appointed by the defendants or any other person entitled to redeem the said mortgage, provided as follows:- "And it is hereby ordered and declared that the defendant and all persons claiming through or under him are absolutely debarred and foreclosed of and from all rights of redemption of and in the property in the aforesaid preliminary decree mentioned .... and that the defendant shall deliver to the plaintiff quiet and peaceful possession of the said mortgaged property." On April 19, 1955 the appellants applied for and obtained possession of the said mortgaged property. According -:to the respondent, however he learnt about the possession of the said mortgaged property having been delivered to the appellants for the first time on May 25, 1955 and thereupon filed an application under O. 21 r. 100 of the Code for restoration of possession to him. On September 27, 1955 the Trial Court rejected that application. The nspondent then filed on January 3, 1956 a Revision Application against the said dismissal. On August 23, 1955 the respondent filed a second application under section 151 of the Code for setting aside the said final decree. On the same day he also filed an appeal in the High Court being Appeal No. 285 of 1956 against the said final decree but without impleading the said mortgagors or the said Hazra, who still was partially interested in the equity of redemption in the said property. In the meantime, the Trial Court dismissed the respondent's application under section l 51 by its order dated February 14, 1956. The High Court also by its order dated May .12, 1961 discharged Civil Rule No. 2 of 1956 issued in the revision application filed by the respondent against the dismissal of his application under 0. 21 r. 100. Appeal No. 285of1956 came on for hearing on May 12 1961 before a Division Bench of the High Court. The High Co~rt set aside the final decree observing : "It is common case that the preliminary decree was for sale. The prayer by the respondents was for a final decree in terms of the preliminary decree. This was allowed, but the final decree as drawn up turned out to be one for SUPREME COURT REPORTS [ l 967] 2 S.C.R. foreclosure. It is this disconfonnity between the preliminary decree and the final decree which is being challenged by the appellant." The High Court ordered "We should in the result set aside the final mortgage A decree and allow the appeal by remitting the matter back t,1 B the Court below to be dealt with in accordance with law. The appellant is given liberty to participate in the matter." Against the said judgment and decree the appellants applied for and obtained a certificate under Art. 133(l)(a) and (b). It is manifest that the High Court's judgment meant that the respondent had sufficient interest to maintain the said appeal and participate in the proceedings before the Trial Court on the said remand for considering the question whether the said preliminary decree should be altered or not and if not whether the respondent had still the right to redeem the said mortgage, though the time for payment fixed under the said preliminary decree had expired, that is, six months from December 23, 1946, long before the respondent became a purchaser of part of the said equity of redemption on February 15, 195 l. There is no dispute that the valuation test for a certificate is satisfied in the present case. The judgment and decree passed by the High Court is also not one of at!irmance as the High Court set aside the said final decree. There can be no dispute also that the question whether the appellant who was the auction-purchaser pendente lite had the locus standi to maintain the appeal was finally decided and he was given liberty to participate in the proceedings for correcting the preliminary decree and was enabled thereby to contend that he was still entitled to redeem the said mortgage and retain possession of the mortgaged property. The Trial Court was bound to allow him to participate in those proceedings as the High Court's judgment specifically directed it to deal with the case in accordance with the directions contained in the said judgment. The judgment and decree of the High Court thus, besides setting aside the said final decree meant that the respondent had still sufficient interest entitling him to challenge the appellants' claim to have a final foreclosure decree and to maintain that the question of redemption was still open and he had the right to redeem the mortgaged property. Counsel for the respondent however contended that the certificate granted by the High Court was not competent and was liable to be vacated as the judgment passed by the High Court was not a judgment, decree or final order inasmuch as what the High Court had done was only to remand the case to the Trial Court and the Trial Court had yet to decide the question whether a final decree for foreclosure should be passed or whether the final decree should c D F G H A B c D E F G H s. N. SINHA v. K. K. NAG (She/at, I.) 23 be one for sale enabling the respondent to redeem the said mortgage. In support of his contention he relied on Sarddr Syedna Tahar Saifuddin Saheb v. State of Bombay(') where this Court held that the certificate granted therein was incompetent as it could not be granted in respect of an interlocutory finding. The order appealed against in that case was a decision as to the validity of the Bombay Prevention of Excommunication Act, 1949 (Bombay XLII of 1949). That being one of the several issues the decision did not dispose of the suit as the rest of the issues still remained to be tried and it was for this reason that it was held that the said order was not a judgment, decree or final order. M/ s. Jethanand & Sons v. The State of Uttar Pradesh(2) was again a case of remand directing the Trial Court to frame fresh issues and give opportunity to the parties to produce evidence. In fact it was an order for a Trial de nova on fresh pleadings and on all issues that might arise on such pleadings. Evidently any decision given by the High Court in the course of its order would not be binding on the Trial Court as the case had to be tried afresh by it. In these circumstances it was held that the order of remand was not a judgment, decree or final order as it did not amount to a final decision relating to the rights of the parties in dispute. In our opinion, these decisions cannot help Mr. Chatterjee as the position here is not the same as in those two decisions. The High Court has given its judgment and in pursuance thereof passed a decree setting aside the said final decree. If the High Court had held that the resportdent in the circumstances of the case had no right to maintain his appeal, the final decree would have become a concluded c;lecree and his right of redemption, if any, would have been totally extinguished. It is true that the High Court remitted the case to the Trial Court but it was obviously not an order of remand simpliciter. The decision of the High Court was not on a preliminary issue leaving undecided other issues to be tried by the Trial Court. It will be observed that the respondent was not a party to the suit-he could not be because when the preliminary decree was passed he was not on the scene. Though he became an auction-purchaser while the appeal against the preliminary decree was pending, he did not apply for being brought on record. The appellants or their predecessor-in-title would not be aware of his purchase and therefore could not implead him in the suit or in the appeal. The respondent filed his appeal against the said final decree and two questions arise in that appeal : (1) whether being a purchaser pendente lite he had locus standi to file an appeal and challenge the final decree and (2) whether the Trial Court had jurisdiction to pass the fuial decree which was not in conformity with the preliminary decree. The judgment of the High Court is unfortunately laconic and one wishes that the learned Judges 0) [1958] S.C.R. 1007. (2) [1961] 3 S.C.R. 754. 24 SUPREME COURT REPORTS (1967) 2 S.C.R. had taken us a little more into confidence by giving some reasons at least. Nonetheless, it is clear that they decided both the questions by holding that the respondent had still sufficient interest in the matter and therefore had locus standi and by setting aside the final decree and directing the Trial Court to decide the question as to whether it could correct the said preliminary decree in accordance with the directions given by them they held that the respondent was entitled to participate in those proceedings and plead that the final decree should be one for sale and consequently he was entitled to redeem the said mortgage. There can be no question that the two questions raised in the appeal before the High Court were .