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Sahadeo Gir Vs. Deo Dutt Misir and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Judge
Reported inAIR1915All188; (1915)ILR37All323
AppellantSahadeo Gir
RespondentDeo Dutt Misir and ors.
Excerpt:
civil procedure code (1908), section 152 - refusal of court to correct an accidental mistake in the drawing up of a decree--revision--jurisdiction. - .....this is an application in revision brought under peculiar circumstances. the petitioner was a prior mortgagee. he had brought a suit against the mortgagor and the subsequent mortgagees upon his mortgage and had obtained a decree. later on, the subsequent mortgagees brought a suit impleading the mortgagor and the present petitioner, and asked for a decree for sale. the petitioner pleaded his prior mortgage. an issue was expressly struck on the point and was found in the petitioner's favour. the operative portion of the judgment. directed that a decree for sale should be prepared in accordance with the provisions of order xxxiv, rule 4, of the civil procedure code, allowing six months for payment. in the absence of any express direction in the judgment that this decree was to be for.....
Judgment:

Chamier and Piggott, JJ.

1. This is an application in revision brought under peculiar circumstances. The petitioner was a prior mortgagee. He had brought a suit against the mortgagor and the subsequent mortgagees upon his mortgage and had obtained a decree. Later on, the subsequent mortgagees brought a suit impleading the mortgagor and the present petitioner, and asked for a decree for sale. The petitioner pleaded his prior mortgage. An issue was expressly struck on the point and was found in the petitioner's favour. The operative portion of the Judgment. directed that a decree for sale should be prepared in accordance with the provisions of Order XXXIV, Rule 4, of the Civil Procedure Code, allowing six months for payment. In the absence of any express direction in the Judgment that this decree was to be for sale of the property in suit subject to the petitioner's prior mortgage, no order to that effect was embodied in the decree. The decree passed was, therefore, one for sale of the property as it stood, without reference to the petitioner's prior mortgage. That decree was not appealed against, and to this extent the petitioner may have been guilty of laches. When, however, it came to the petitioner's knowledge that the opposite party was seeking to execute that decree as it stood, he went to the court which passed the same and sought to obtain its amendment. The application with which we are concerned was one presented under Section 152 of the Civil Procedure Code. The court below refused to go into the matter on the merits. It held that the case was not one to which the provisions of Section 152 aforesaid applied. We are unable to concur in the reasoning of the learned Judge of the court below. In our opinion, this was a clear case of an error arising from an accidental slip or omission. The court should have been prepared to correct that error, either of its own motion or on the application of any of the parties. There has been a refusal to exercise what in this case was a necessary jurisdiction, and this refusal is based on a misunderstanding of the powers conferred on the court below by the section aforesaid. We accept this application, and direct that the Judgment be amended by the insertion of the express words directing the sale of the property in suit subject to the prior mortgage of this petitioner, and that consequential amendments be made in the preliminary decree for sale, as also in the decree absolute. As we think that the petitioner might have been more watchful over his own interest and should have taken action earlier than he did, we direct that he do bear the costs of the opposite side in the present proceedings both here and in the court below.


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