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Krishnaya Parbhaya Chintalwar Vs. Meghraj Paparam Teli - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 489 of 1937
Judge
Reported inAIR1940Bom10; (1939)41BOMLR1170
AppellantKrishnaya Parbhaya Chintalwar
RespondentMeghraj Paparam Teli
DispositionAppeal dismissed
Excerpt:
.....presented an appeal to the district court, and the learned district judge dismissed the appeal on the ground that the order complained of having been made under section 151 of the civil procedure code and not falling under section 47, it was not appealable. 8425 should be put up for auction, and that the bidder should be clearly made aware that only one house out of city survey no. it is evident from the warding of the application as well as from the nature of the reliefs prayed for that it was made to the court which passed the decree and not to the executing court. 488): there is no ambiguity in the worda of the certificate that are capable of explanation by such means, and the object of the sale certificate would be defeated if it were possible to change its plain meaning by..........194 of 1929) to recover the mortgage amount by the sale of the mortgaged houses. in the interval a city survey had taken place, and old municipal no. 8425 and two open sites, old municipal nos. 8426 and 8428, were all included in city survey no. 8012 (new municipal no. 249). in the plaint in the suit the houses mortgaged were described as city survey no. 8012-old municipal no. 8425, new municipal no. 249. it seems to have escaped the notice of the parties that city survey no. 8012 (new municipal no. 249) comprised two other properties besides old municipal no. 8425 which had been mortgaged with the respondent. a decree was eventually passed in which the properties as described in the plaint were ordered to be sold for the realization of the mortgage amount.2. the respondent presented.....
Judgment:

Lokur, J.

1. The appellants' father, Parbhaya, mortgaged two houses to the respondent for Rs. 1,800 in 1919. One of those houses was old municipal No. 8425. The respondent then filed a suit (suit No. 194 of 1929) to recover the mortgage amount by the sale of the mortgaged houses. In the interval a city survey had taken place, and old municipal No. 8425 and two open sites, old municipal Nos. 8426 and 8428, were all included in city survey No. 8012 (new municipal No. 249). In the plaint in the suit the houses mortgaged were described as city survey No. 8012-old municipal No. 8425, new municipal No. 249. It seems to have escaped the notice of the parties that city survey No. 8012 (new municipal No. 249) comprised two other properties besides old municipal No. 8425 which had been mortgaged with the respondent. A decree was eventually passed in which the properties as described in the plaint were ordered to be sold for the realization of the mortgage amount.

2. The respondent presented darkhast No. 1487 of 1932 for the execution of the decree, and the sale of city survey No. 8012. It then came to the notice of the appellants that besides the old municipal No. 8425, their two other open sites, old municipal Nos. 8426 and 8428, were going to be sold since they were all included in the city survey No. 8012. They, therefore, made an application to the executing Court on October 23, 1935, requesting that it should be clearly stated in the sale proclamaion that only old municipal No. 8425 out of city survey No. 8012 was to be sold. The executing Court then held that there being no difference in the decree and in the darkhast application as regards the description of the property, the appellants' contention could not be inquired into in execution proceedings, since that contention amounted to saying that the decree itself was wrong. The application was, therefore, rejected, and then the appellants made another application to the Court which passed the decree requesting that the description of the properties in the decree should be suitably amended, that the amendment should be incorporated also in the certified copy supplied to the decree-holder, and that till then the darkhast proceedings should be stayed. That application was rejected on the ground that in view of the boundaries of the properties mortgaged as described in the mortgage deed, the whole of city survey No. 8012, comprising old municipal Nos. 8425, 8426 and 8428, was included in the mortgage. Against that order the appellants presented an appeal to the District Court, and the learned District Judge dismissed the appeal on the ground that the order complained of having been made under Section 151 of the Civil Procedure Code and not falling under Section 47, it was not appealable.

3. The appellants have now come in second appeal, and it is urged on their behalf that the order passed by the learned Subordinate Judge refusing to rectify the decree as prayed for was an order under Section 47 of the Civil Procedure Code, or being an order in the course of the suit, it amounted to an appealable decree. Both these contentions are not tenable.

4. The first application presented by the appellants on October 23, 1935, was undoubtedly an application in the darkhast, and the relief asked for by that application was that in execution of the decree as it stood, only old municipal No. 8425 should be put up for auction, and that the bidder should be clearly made aware that only one house out of city survey No. 8012 was being sold. But the executing Court made it clear that as the description in the decree was clear, it had no power to go behind the decree or to rectify it. It observed in its order :

What the applicant contends is that the decree itself is wrong. That contention cannot be enquired into in the execution proceedings and the opponent may take such steps in the matter as he may be advised.

5. It was in accordance with this suggestion that a second application was made by the appellants to the Court which passed the decree to have the decree amended. It cannot be said that this application was made under Section 47 of the Civil Procedure Code as it did not relate to the execution of the decree but to the correction of the decree. The appellants wanted that the pending execution proceedings should be stayed until the decree was corrected. The decree could not be corrected by the executing Court, and hence they could not make any such application in execution proceedings. It is evident from the warding of the application as well as from the nature of the reliefs prayed for that it was made to the Court which passed the decree and not to the executing Court. Hence the order passed by that Court cannot be said to be an order made under the provisions of Section 47 of the Civil Procedure Code, Nor can it be regarded as a decree in a suit. It is true that if the decree was amended, then the other side could have appealed from the amended decree. But, when the Court refused to amend the decree, there was no decree from which an appeal could be preferred. The order against which the appellants filed their appeal before the learned District Judge was not a decree, but an order refusing to amend the decree. Such an order is not one of the orders included in Order XLIII, Rule 1, of the Civil Procedure Code, nor does it amount to a decree itself.

6. On behalf of the appellants, Mr. Murdeshwar referred to the ruling of the, Privy Council in Ramabhadra Naidu v. Kadiriyasami Neticker I.L.R. (1921) Mad. 483 In that case in the year 1893 a certain Zamindar had mortgaged his pemnai rights in certain inam villages which belonged to him and which were in his enjoyment. At the time of the mortgage some of the pennai lands to the extent of two hundred and twenty-six kulis were not in the enjoyment of the mortgagor but were in the possession of the widow of the Zamindar, and presumably they were not included in the mortgage. The mortgagee filed a suit on the mortgage and obtained a decree in 1901. During the pendency of the suit the widow died, and the pannai lands in her possession went into the possession of the mortgagor. When the mortgage decree was executed by the assignee of the decree, the property put to sale was described in the same words as in the mortgage decree, that is to say, ' the pannai lands belonging to the mortgagor and in his enjoyment.' The auction purchaser obtained a sale certificate and took possession of all the pannai lands including the 226 kulis which were not intended to be mortgaged. The mortgagor's son brought a suit to have it declared that the 226 kulis were not sold and that they did not pass to the auction purchaser. In dismissing the suit Lord Buckmaster observed as follows (p. 488):

There is no ambiguity in the worda of the certificate that are capable of explanation by such means, and the object of the sale certificate would be defeated if it were possible to change its plain meaning by reference to other documents. The rights of the mortgagors, however, need not have been taken away by this fact, as they were at liberty to have taken proceedings in the suit in order to raise the contention that they now put forward under Section 47 of the Code of Civil Procedure, 1908, but this they have never done and it is now too late.

7. Mr. Murdeshwar wants this to be interpreted as suggesting that in all cases of a wrong description of the property its correction can be made under Section 47 of the Civil Procedure Code. But in that case there was no error in the description of the property either in the plaint or in the decree. The mistake was committed in execution proceedings when the property put to sale was not described with sufficient care and the description was ambiguous and insufficient. But where the description of the property is incorrect in the decree itself, the executing Court cannot rectify it. It is only the Court which passed the decree that can correct the mistake in the exercise of its inherent powers under Section 151 of the Civil Procedure Code. If it corrects the mistake and amends the decree, the amended decree is appealable; but if it refuses to do so, the order of refusal is not a decree and no appeal lies against it.

8. This appeal is, therefore, dismissed with costs.


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