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Shujaatmand Khan and ors. Vs. Govind Behari and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1934All100a; 147Ind.Cas.633
AppellantShujaatmand Khan and ors.
RespondentGovind Behari and ors.
Excerpt:
- - the description of the zamindari shares and the boundaries of each item of property in the mortgage deed of 1914 were precisely the same as in the two earlier mortgages. a revision lying, we have to see whether the order complained of was made within the jurisdiction of the lower court. 3. it is quite clear that the order complained of cannot possibly come within section 152, civil p. under these circumstances, parol evidence was, in our opinion, clearly inadmissible. the application is allowed and the order complained of is set aside with costs......the description of the zamindari shares and the boundaries of each item of property in the mortgage deed of 1914 were precisely the same as in the two earlier mortgages. it appears, however, that in 1901 there had been a settlement as a result of which the proportionate shares of the mortgagors in the mahals were changed. after a preliminary decree had been passed in the foreclosure suit, the plaintiffs filed an application on 12th may 1931 which purported to be an application under section 152, civil p.c., in which they alleged that there had been a misdescription of the mortgaged shares in the mortgage deed of 1914. they accordingly prayed for an amendment of the plaint and of the preliminary decree. the court below allowed parol evidence to be given in order to show what had.....
Judgment:

Young, J.

1. This is an application in revision against an order of the Subordinate Judge of Farrukkabad, allowing an amendment to be made in a plaint and in a preliminary decree in a foreclosure suit. The facts are these: On 16th December 1897, eight of the zamindari properties now in suit were mortgaged for Rs. 5,000 in favour of one Laxmi Narain alias Munna Lal. In 1905 the same eight properties and also a house were mortgaged by the same mortgagors for Rs. 10,000, with interest at Rs. 60 per mensem compoundable annually, in favour of one Raj Kunwar and certain other persons. In 1914 the same mortgagors executed a mortgage by conditional sale for Rs. 12,000, with half yearly interest to the extent of Rs. 432 compoundable annually, in favour of the plaintiffs and their ancestors. The same eight zamindari properties and also the house and a grove were included in that mortgage. The description of the zamindari shares and the boundaries of each item of property in the mortgage deed of 1914 were precisely the same as in the two earlier mortgages. It appears, however, that in 1901 there had been a settlement as a result of which the proportionate shares of the mortgagors in the mahals were changed. After a preliminary decree had been passed in the foreclosure suit, the plaintiffs filed an application on 12th May 1931 which purported to be an application under Section 152, Civil P.C., in which they alleged that there had been a misdescription of the mortgaged shares in the mortgage deed of 1914. They accordingly prayed for an amendment of the plaint and of the preliminary decree. The Court below allowed parol evidence to be given in order to show what had been the intention of the parties, and it then allowed the application and directed that the plaint and the preliminary decree be amended as prayed by the plaintiffs. It is against this order of the learned Judge that this application in revision has been filed. A preliminary point has been taken that no revision lies against the order of the lower Court. It is alleged that an appeal lies in respect of the amended decree and therefore no revision lies.

2. As regards this preliminary objection, we are of opinion that it has no force. In the first place, the application in revision is not directed against the amended decree at; all. It is directed against the order to amend the decree, which is a very different matter. Such an order is not one of the orders specified in Section 104(4), Civil P.C., or in Order 43, Rule 1. Therefore there could not be an appeal against this order. A revision therefore lies. This opinion is in accordance with the long series of decisions of this Court, to which we do not need to refer. A revision lying, we have to see whether the order complained of was made within the jurisdiction of the lower Court. The order was made under Section 152. Section 152 enacts that

clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission may at any time be corrected by the Court, either on its own motion or on an application o any of the parties.

3. It is quite clear that the order complained of cannot possibly come within Section 152, Civil P.C. An amendment of this character which completely alters the plaint and the decree and also the deed on which the plaint is based cannot be said to be the correction of a clerical mistake in a judgment. There was indeed no clerical mistake even on the showing of the opposite party. The earlier mortgage deeds were copied faithfully and correctly by the clerk, and that is the ground of their present complaint Section 152, therefore, not applying, the Court below had no jurisdiction under this section to act in the way it has done.

4. In the view which we have formed ' to Section 152, it is not necessary for us to deal with the law point which arises as to the suggested alteration of the mortgage deed. Nevertheless, we think it right to add that the Judge had misdirected himself in law, by allowing parol evidence to be called in a ease of this sort. The mortgage deed was clear and unambiguous and actually applied to existing facts. Under these circumstances, parol evidence was, in our opinion, clearly inadmissible. The application is allowed and the order complained of is set aside with costs.


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