P L D 1956 Dacca 111 (PLP)

CHOWDHURY, J.‑This appeal is by defendants Nos. 2 and 3 in a suit for foreclosure of a mortgage. Plaintiff filed a suit for foreclosure on a bond of mortgage by conditional sale and a preliminary decree was passed on the 2nd March 1944, allowing the defendants mortgagors to pay the decretal amount in 5 annual Kists under section 34 of the Bengal Money Lenders Act. The preliminary decree provides that if the defendants defaulted in payment of any instalment, the plaintiff decree‑holder would be entitled to file an application for passing a final decree for foreclosure barring the defendants from redeeming the mortgage. The defendants defaulted in payment of the first Kist. Thereupon the decree‑holder filed an application for a final decree. The Court inadvertently passed the following order on the 23rd June 1944. "Notice served. No objection raised. That the suit be brought to file and the preliminary decree for sale be made absolute with costs": This order was followed by a final decree for sale which was signed and sealed on the 29th June 1944. Thereafter on the 1st March 1946, the decree‑holder filed an application for amendment of the decree which was rejected on the 30th April 1946, by the Munsif holding that the correction sought for was not a clerical error which could be rectified under section 152 as the decree was drawn up in accordance with the final order and that unless that order was set aside or modified, no relief could be afforded to the decree‑holder petitioner. Thereupon the decree‑holder filed another appli cation on the 1st May 1946, praying for correction of the final order dated the 23rd June 1944, on the basis of which the final decree for sale was drawn up. On receipt of the notice of this application, the Court guardian of the minor defendants Nos. 2 and 3 filed an application for permission to deposit the decretal amount and thereby to redeem the mortgage. Trial Court by its order dated the Ist March 1947, held that the only preliminary decree that was on the record was one of the foreclosure and the decree that was made absolute was not the decree for sale though the Court inadvertantly said so and as such amendment under sections 151 and 152 was quite appropriate. But the trial Court for the sake of justice and equity passed a "comprehensive equitable order" that in consideration of .the provision for extension of time under section 35 of the Bengal Money Lenders Act, the final decree as aforesaid was treated to be amended to that of a final decree for foreclosure subject to the fact that as the dues had been deposited and accepted the decree stood satisfied. There was an appeal against the order accepting the deposit and holding that the decree stood satisfied. The lower appellate Court could not agree with the trial Court. According to it the decree that was in existence was the decree of the year 1944 as amended in the year 1947 and the judgment‑debtors had no right to deposit the money in 1947 and to have the mortgage redeemed. Against this decision defendants Nos. 2 and 3 filed the present appeal. Mr. N. C. Choudhury, the learned Advocate appearing on behalf of the appellants contends that the amendment made by the Court is not in respect of clerical or arithmetical mistake or accidental slip but it is the amendment of the operative portion of the decree consequent upon the amend ment of the order, the basis of the final decree, therefore, the amendment made by the Court cannot be one under section 151 or 152, and must have been made by the Court in exercise of its power of review under Order XLVII of the Code of Civil Procedure. Therefore, according to Mr. Choudhury the defendants were not precluded by any order of the Court from redeeming the mortgage before. It seems to me that the contention of Mr. Choudhury is of substance. The preliminary decree no doubt stated that in default of payment of any instalment, the plaintiff decree holder would be entitled to file an application for final decree debarring the defendants from redeeming the mortgage. But until and unless that final decree is passed, the judgment -debtors are not debarred from redeeming the mortgage and the Court has got ample power to extend the time for payment of the decretal amount and to redeem the mortgage. Here in the present case, the trial Court expressly said so that he had got the power to extend the time and allowed the defendants to deposit the decretal amount and accepted the amount deposited by them and held that the decree stood satisfied. On the other hand Mr. Priyanath Bhattacharyya, the learned Advocate for the decree‑holder opposite party, contends that the amendment was of the nature of accidental slip on the part of the Court to make the preliminary decree for sale absolute instead of making the foreclosure decree absolute and the amendment is one contemplated under section 152 of the Code of Civil Procedure, and, therefore, the decree that exists is the decree that was passed in 1944 as it is amended in 1947. I am unable to accept this contention as sound. The correction asked for and made by the Court cannot be a correction contemplated under section 152 when it changed the operative portion of the judgment the basis of the final decree. Such amendment is not contemplated under section 152 and a different decree for foreclosure from a decree for sale was drawn up. It is only possible in exercise of the power of review under Order XLVII of the Code of Civil Procedure. This view can be strengthened by the fact that, if anybody intends to file an appeal against the final decree, he must file the appeal not against the decree of the year 1944 but the decree that was passed in the year 1947 after amendment of the judgment and decree passed in the year 1944. Until and unless the preliminary decree is followed by an appropriate final decree, the defendants are not barred from redeeming the mortgage if the Court 'extends time which the Court is entitled to do under the law. In support of the view reliance may be placed on the decision in the case of Kader Nath Moyra v. Golam Hossain Mollah and others (40 C W N 83). In the judg ment of that case his Lordship Mr. Justice Mitter has referred to several other cases while dealing with the question of limitation for filing an appeal against the amended decree. In that case Mitter, J. held that cases where review of judgment was granted wholly or in part and thereafter they original decree was amended in conformity with the final judgment passed after review stand on a different footing and' the original judgment in the eye of law was superseded by the judgment after review. Therefore if the operative portion of the judgment amended which could only be made under Order XLVII of the Code of Civil Procedure, the decree that followed the amendment was a new decree superseding the old decree. The trial Court which extended the time to deposit the decretal amount thereby enabling the defendants to redeem the mortgage acted within its power; because the defendants were not foreclosed from redeeming the mortgage by any final order of the Court before they asked for permission to deposit the money and redeem the mortgage. I am unable to agree with the lower appellate Court that the final decree that was in existence was the decree that was passed in 1944 as amended in 1947. According to my view a new decree has been passed as the amendment altered the operative portion of the earlier decree and till this new final decree is passed, the right of the defendants was not barred from redeeming the mortgage with the permission of the Court. The result, therefore, is that this appeal is allowed, the judgment and order of the lower appellate Court are set aside and those of the trial Court restored. But in view of the facts and circumstances, I direct that the appellants shall bear their own costs throughout including the costs of this Court. K. B. A. Appeal allowed.