L.H. Jenkins, C.J.

1. This appeal arises out of a suit to set aside a decree ina previous suit, on the ground that the Judge in passing the decree in thatprevious suit made a mistake. As an authority for this suit and its competencewe have been referred to the decision in the case of Jogeswar At a v. GangaBishnu Ghattack 8 C.W.N. 473. It may be that a superficial examination of thatdecision gives an appearance of authority for the proposition which the respondentadvances before us and apparently has advanced with success in both he lowerCourts.

2. Already it has become noticeable that there has been acrop of cases in this Presidency in which it has been sought to set asideprevious decrees on the ground of fraud. The readiness to find fraud encouragesthis class of litigation and the new departure has been a misfortune. If weencourage the idea that the alleged mistake of a Judge is to furnish adisappointed litigant with a fresh smarting point for keeping his opponent inCourt, then the misfortune would be gravely increased to the public detriment.There must be some end to litigation. I have said there may appear to be someauthority for this suit in the case I have mentioned. But it is apparent fromthe judgment in that case that there was no intention of proceeding beyond theEnglish authority. No instance has been brought to our notice when a suit toset aside or rectify a decree in a previous suit has succeeded on the groundthat the Judge was mistaken though his decree accurately expressed hisintention. The only case to which reference was made in the case of JogeswarAtha v. Ganga Bishun Ghatiack 8 C.W.N. 473 was a decision of an English Court,where the decree was one passed not after contest but on agreement between theparties. But that class of case is governed by a principle that has noapplication here. It is well settled that a, contract of the parties isnonetheless contract because there, is superadded to it the command of a Judge.It still is a contract of the parties, and as the contract is capable of beingrectified for an appropriate mistake so, as the necessary consequence, is thedecree which it merely a more formal expression given to that contract. I amunable to draw from those decisions of which Hadderstield Banking Co. Limitedv. Henry Lister and Son Limited (1895) 2 Ch. D. 273 : 64 L.J. Ch. 523 : 12 331: 72 L.T. 703 : 43 W.R. 567 are typical the conclusion that a decree aftercontest and giving accurate expression to the Courts intention can be setaside. There is no analogy between the two cases. In the one the decree is setaside merely because the agreement on which it was founded was set aside. Inthe other case this consideration has no application. It is not as if thelitigant is without remedy. Our Code provides ample means without a fresh waitwhereby the litigant can obtain the correction of error. If a fresh suit can bestarted on the ground placed before us here, then I can see no end tolitigation. In holding as I do that this suit does not lie, I am making no newdeparture. I am merely following previous decisions of this Court and inparticular the decision of Sir Comer Petharam in Mahomed Golab v. MahomedSulliman 21 C. 612 the decision of a Division Bench in the case of Sadho Misserv. Golab Singh : 3 C.W.N. 375 and finally, the decision of athird Division Bench in the case of Bhonda Singh v. Dowlat Roy 14 Ind. Cas. 93 [LQ/CalHC/1912/81] : 15 C.L.J. 675.

3. It is not suggested in this case that there was anyfraud. Had that been so then the matter would have been different, for it isrecognized that a decree can be set aside on the ground of fraud if of therequired character.

4. In my opinion the decree under appeal is erroneous andshould be set aside and the suit dismissed with costs throughout.

Herbert Holmwood, J.

5. I entirely agree with what has fallen from the learnedChief Justice. I desire to add that I do not think it matters whether thedecree accurately expresses the intention of the judgment, as if there is anydivergence between the decree and the judgment, as has been thrown out at onepart of the argument before us, then this is a matter for amendment. As long asthe Court has jurisdiction and authority to decide a matter, as it has decidedit, it cannot be re-opened by a suit.

6. I desire to emphasis all that has fallen from, the ChiefJustice with regard to the disastrous consequences which will follow by openingany fresh door of litigation, such as appears to be indicated in this case.

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Kusadhaj Bhakta vs.Broja Mohan Bhakta (21.07.1915 - CALHC)