Samarendra Nath Sinha v. Krishna Kumar Nag
AIR 1967 SC 1440 — Foreclosure vs Sale, lis pendens purchaser, and court’s power to correct decrees—explained in clean, classroom-style English.
Quick Summary
The Supreme Court said: the trial court may fix a clerical slip in a preliminary decree when it passes the final decree, so that the final order shows the court’s true intent. Because the mortgage was by conditional sale, foreclosure, not sale, was the proper relief. A buyer who comes pendente lite is bound by the case outcome and cannot claim a better right than the person he bought from.
- Sections 151–152 CPC: power to correct accidental slips.
- Section 52 TPA: lis pendens binds a pendente lite purchaser.
- Order 34 Rule 4 CPC: final decree should match the intended preliminary decree.
Issues
- Could the trial court pass a final foreclosure decree even though the preliminary decree mistakenly said “sale”?
- Could the respondent, as an execution purchaser pendente lite of part of the equity of redemption, claim a right to redeem despite foreclosure?
Rules
- Sections 151–152 CPC: courts may correct clerical mistakes or accidental slips in judgments/decrees to reflect real intent.
- Section 52 TPA (lis pendens): a purchaser during litigation takes subject to the result and cannot contradict the final decree.
- Order 34 Rule 4 CPC: final decree follows the preliminary decree; if the latter has a clerical error, the court may rectify to ensure justice.
Facts (Timeline)
Mortgage by conditional sale: If dues unpaid by due date, sale becomes absolute.
Transfer by mortgagor: Mortgagor later transfers interest to Hazra.
Suit filed: Mortgagee sues for foreclosure; trial court’s preliminary decree wrongly says “sale”.
High Court direction: Appeal dismissed; trial court told to pass a final decree for foreclosure.
Pendente lite purchase: Krishna Kumar Nag buys part in execution against Hazra; then claims right to redeem.
Remand order: High Court later sets aside foreclosure for not matching preliminary decree and remands.
Supreme Court appeal: Appellants challenge the remand; seek restoration of foreclosure.
Arguments
Appellants
- “Sale” in the preliminary decree was a clerical slip; court can correct under Ss. 151–152 CPC.
- Mortgage by conditional sale → proper relief is foreclosure, not sale.
- Nag bought pendente lite; bound by lis pendens (S. 52 TPA).
Respondent
- Final decree must conform to the preliminary decree; foreclosure cannot replace sale.
- As execution purchaser of equity of redemption, he claimed a right to redeem.
Judgment
The Supreme Court allowed the appeal. It restored the final decree for foreclosure passed by the trial court. The Court held that the trial court could correct the accidental use of “sale” in the preliminary decree under Sections 151–152 CPC. The respondent, a purchaser pendente lite, was bound by Section 52 TPA and could not upset foreclosure. The High Court’s remand was therefore wrong.
Ratio Decidendi
Courts may rectify clerical errors in preliminary decrees at the final decree stage to reflect the court’s true intention; a pendente lite purchaser is bound by lis pendens and cannot claim a better right than the transferor.
Why It Matters
- Clarifies how Ss. 151–152 CPC work beyond mere typos—used to prevent injustice.
- Reinforces lis pendens: litigation binds later purchasers.
- Guides mortgage suits: foreclosure vs sale must fit the mortgage form.
Key Takeaways
- Final decree may correct a clerical slip in the preliminary decree.
- Lis pendens binds a pendente lite purchaser to the suit result.
- In a mortgage by conditional sale, foreclosure is the correct relief.
Mnemonic + 3-Step Hook
Mnemonic: “FIX–BIND–FORECLOSE”
- FIX — Court may fix clerical errors (Ss. 151–152 CPC).
- BIND — Pendente lite buyers are bound (S. 52 TPA).
- FORECLOSE — Correct relief for mortgage by conditional sale.
IRAC Outline
Issue
Validity of foreclosure final decree and rights of a pendente lite purchaser.
Rule
Ss. 151–152 CPC; S. 52 TPA; O.34 R.4 CPC.
Application
“Sale” was an accidental slip; buyer took subject to suit; foreclosure fits mortgage type.
Conclusion
Appeal allowed; foreclosure restored; costs to appellants.
Glossary
- Lis Pendens
- Rule that a pending suit binds later purchasers of the property.
- Equity of Redemption
- Mortgagor’s right to reclaim property by paying dues before foreclosure.
- Clerical Slip
- Accidental wording error that does not reflect the court’s intent.
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