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Gobind Behari and ors. Vs. Shujaat-mand Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1938All364
AppellantGobind Behari and ors.
RespondentShujaat-mand Khan and ors.
Excerpt:
- - 10,000, the mortgage of 1897 being satisfied out of the consideration. but we are clearly of opinion that the same principle will apply to a case where the preliminary decree as amended by the lower court has been varied by this court in exercise of its revisional powers under section 115, civil p. 8 in the three successive mortgage deeds of 1897, 1905 and 1914 clearly shows that the, parties to those deeds were not quite ignorant of the changes which the properties mortgaged had undergone......allowing amendment of the plaint and the preliminary decree was set aside.2. meanwhile however a final decree had been drawn up on the application of the decree-holders in accordance with the amended preliminary decree and the decree-holders pat it into execution and obtained possession of the property as specified in the amended plaint and in the amended preliminary decree. after this court's decision, the respondents to this appeal applied to the court below under section 144, civil p.c., for restitution on the ground that the decree-holders had obtained possession of more property than they were entitled to and were, therefore, liable to restore the excess. that application has been allowed by the learned judge of the court below, and hence this appeal. learned counsel for the.....
Judgment:

Collister, J.

1. This is an appeal from an order of the Civil Judge of Farrukhabad allowing an application for restitution under Section 144, Civil P.C. On 16th December 1897, the predecessor of the respondents mortgaged 8 zamindari properties with one Lachmi Narain for Rs. 500. On 31st August 1905, 8 zamindari properties and also a house were mortgaged with Raj Kunwar and others for Rs. 10,000, the mortgage of 1897 being satisfied out of the consideration. On 6th August 1914, 8 zamindari properties and the same house and also a grove were mortgaged with Kunwar Bahadur and others, the predecessors of the present appellants. This was a mortgage by conditional sale and the earlier mortgage of 1905 was paid up. It appears that in 1901 there was a settlement and in 1907 there was a partition and there was a change in the mahals and in the description of shares belonging to the zamindars. The mortgagees under the mortgage deed of 6th August 1914, who are the appellants before us, sued for foreclosure and obtained a preliminary decree on 11th February 1930. The property specified in that decree was (as was to be expected) as described in the mortgage deed of 6th August 1914. Subsequently, the decree-holders applied for amendment of the plaint and preliminary decree under Sections 151 and 152, Civil P.C., on the ground that the property had changed its form by reason of the settlement proceedings of 1901 and the partition of 1907, and it was prayed that the specification of property in the plaint and in the preliminary decree be altered accordingly. This application was allowed by the Court below and the plaint and the preliminary decree were amended as prayed. Thereafter the judgment-debtors, i.e. the respondents before us, applied in revision to this Court, and on 7th November 1933, their application was allowed and the order of the Court below allowing amendment of the plaint and the preliminary decree was set aside.

2. Meanwhile however a final decree had been drawn up on the application of the decree-holders in accordance with the amended preliminary decree and the decree-holders pat it into execution and obtained possession of the property as specified in the amended plaint and in the amended preliminary decree. After this Court's decision, the respondents to this appeal applied to the Court below under Section 144, Civil P.C., for restitution on the ground that the decree-holders had obtained possession of more property than they were entitled to and were, therefore, liable to restore the excess. That application has been allowed by the learned Judge of the Court below, and hence this appeal. Learned Counsel for the respondents has no instructions, but we have heard learned Counsel for the appellants. The first plea taken by him is that the respondents had no right to apply for restitution. He pleads that, since his clients have obtained possession in accordance with the final decree and since that final decree has not been varied or reversed, there can be no right of restitution until such time as an application shall have been made for its amendment and amendment shall have been made.

3. In our opinion, there is no force whatsoever in this plea. We are supported by authority of this Court. In Shadi Lal v. Jagdamba Sahai : AIR1931All655 , a certain person sued for recovery of Rs. 14,000 in enforcement of a mortgage and the suit was decreed. The defendants appealed; but, during the pendency of their appeal the decree-holder applied for and obtained a final decree and thereafter he put it into execution and three properties were sold at auction. Then the defendants appeal from the preliminary decree was heard and after the date of auction this Court varied the preliminary decree by reducing the amount from Rs. 14,000 to Rs. 7000 and by directing that such amount was charged upon one of the three properties only. Thereafter an application was made for restitution under Section 144, Civil P.C. The learned Judges at page 669 observe:

It was contended by Shadi Lal (i.e., the decree-holder) that the application under Section 144, Civil P.C. was incompetent. It was argued that the defendants not having filed an appeal from the final decree and the property having been sold in execution of the said decree, no application for restoration of possession could be made under Section 144, Civil P.C., because the final decree had neither boon varied nor reversed. This contention was overruled and rightly overruled by the Court below. Where the preliminary decree has been varied or reversed by the Appellate Court, it follows that the final decree passed thereon, and all the execution proceedings, which have taken place in pursuance of the final decree, fall through and that there could be no necessity for filing an appeal from the final decree.

4. It is true that in the present case there was no appeal against the preliminary decree; but we are clearly of opinion that the same principle will apply to a case where the preliminary decree as amended by the lower Court has been varied by this Court in exercise of its revisional powers under Section 115, Civil P.C. It is obvious that there cannot be a final decree inconsistent with the preliminary decree and the final decree will automatically conform with the preliminary decree when the latter is amended. In our opinion the application under Section 144, Civil P.C. was competent. As regards the merits of this application, learned Counsel for the appellants pleads that the properties as described in the plaint and in the preliminary and final decrees did not conform with the intention of the parties to the transaction. The learned Judge of the Court below in dealing with this matter observes:

A reference to the description of property No. 8 in the three successive mortgage deeds of 1897, 1905 and 1914 clearly shows that the, parties to those deeds were not quite ignorant of the changes which the properties mortgaged had undergone. In the mortgage deed of 1897 property No. 8 was described as a part of mahal Mt. Pota. In the mortgage deed of 1914 this very property was described as part of mahal Shujaat-mand Khan. It can be seen from this that the parties to the mortgage were not at all unmindful of the existing state of things so far as the mortgaged properties were concerned. The reason for the inclusion in the mortgage deed of 1914 of only as much of the properties as conformed to the old descriptions seemed to be, as suggested by the applicants, that this time the mortgagees were getting a mortgage with a right of foreclosure attached to it and also an additional security in the shape of a grove worth about Rs. 1000. The eight village properties, the house and the grove all taken together were, it appears, worth at least double the amount of the mortgage money.

5. Further on the learned Judge says:

But in my view of the case it is not open to either of the parties at this stage to go into the question of sufficiency or otherwise of the security which was really meant to be given to the mortgagees by the mortgage deed of 1914. The mortgagees entered into the transaction with open eyes and full knowledge of the nature and the extent of the security they were taking from the mortgagors under the mortgage. They brought a suit on the basis of their mortgage and obtained a decree from the Court. The decree, as it was originally passed, gave the mortgagees whatever rights they could claim under the mortgage deed of 1914. It could not be denied by the mortgagees that on the basis of the mortgage deed of 1914 and the decree obtained by them on that deed they could get any but the properties specified and described in the deed and in the decree.

6. Whatever the intention of the parties may in fact have been, we have no hesitation in agreeing with the conclusion at which the learned Judge has arrived. Section 92, Evidence Act provides:

When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives-in-interest, for the purpose of contradicting, Varying, adding to, or subtracting from, its terms.

7. Then there are certain provisos, none of which is relevant to the matter before us. Section 94 provides that:

When language used in a document is plain in itself, and when it applied accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts.

8. Curiously enough neither of these sections has been referred to by the learned Judge of the Court below. Now the preliminary decree, as originally framed and as it now stands, is admittedly in accordance with the mortgage deed to which it relates and the terms of that mortgage deed are clear and unambiguous and apply to existing facts. It is not suggested that the properties specified in the mortgage deed do not exist or are unidentifiable. It is of course by no means inconceivable that the real intention of the parties may have been that exactly the same property be mortgaged as had been mortgaged in 1897 and 1905, and it is pleaded on behalf of the appellants that the circumstances are such as would justify such an inference. But, whatever speculation might be indulged in, the surrounding circumstances are certainly not such that the only possible conclusion at which this Court could arrive is that there had been an inadvertent misdescription of property in the mortgage bond in suit and that the property which was intended to be mortgaged was something over and above what was actually described and specified in the document. When the circumstances are not so compelling as to lead inevitably to such a conclusion, we have no hesitation in holding that the appellants are barred by the provisions of Sections 92 and 94, Evidence Act from showing that the intention of the parties to the transaction of mortgage was different from what appears from the terms of the mortgage deed itself. For the reasons given above, we dismiss this appeal with costs.


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