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Pule Bishunath Rai Vs. Bramhanand Swami - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1918All208; 47Ind.Cas.830
AppellantPule Bishunath Rai
RespondentBramhanand Swami
Excerpt:
civil procedure code (act v of 1908), sections 115, 151, 152 - mortgage decree making mortgaged property liable , for mortgage as well as sub-mortgage--amendment of decree, application for, dismissal of--revision. - .....of the plaintiff's mortgage, interest and costs but finding that the plaintiff had made a sub mortgage it directed that the sub-mortgagee should get the amount of her mortgage out of the proceeds of the sale before the plaintiff was paid. there seems to be very little doubt that the decree as drawn up directed the property to be sold not only for the amount of the plaintiff's mortgage but also for the amount of the submortgage, that is to say, the defendant and the defendant's . property . was being made liable not only for the mortgage which the defendant had made but also the sub-mortgage which the plaintiff had made. nothing could possibly be more unjust and unequitable and it is impossible to read the judgment as having any such meaning. an application was made by the defendant.....
Judgment:

1. This application in revision arises under the following circumstances. A suit was brought to realise the amount of a mortgage. It appears that the plaintiff had made a sub-mortgage. The Court decreed the plaintiff's, claim. Reading the judgment it is absolutely clear that the Court intended that the property should be sold for the amount of the plaintiff's mortgage, interest and costs but finding that the plaintiff had made a sub mortgage it directed that the sub-mortgagee should get the amount of her mortgage out of the proceeds of the sale before the plaintiff was paid. There seems to be very little doubt that the decree as drawn up directed the property to be sold not only for the amount of the plaintiff's mortgage but also for the amount of the submortgage, that is to say, the defendant and the defendant's . property . was being made liable not only for the mortgage which the defendant had made but also the sub-mortgage which the plaintiff had made. Nothing could possibly be more unjust and unequitable and it is impossible to read the judgment as having any such meaning. An application was made by the defendant to bring the decree into accordance with the judgment, pointing out this and another alleged error as to interest. We may point out that there had been an actual report made by the office of the Court that the amount of the sub-mortgage had been added to the amount of the plaintiff's mortgage in the decree by mistake. The only order which the Court below has made is to state that an amendment is 'uncalled for.' We think that under the special circumstances of this case this amounted to a refusal to exercise a jurisdiction vested in the Court. We allow the application and direct the lower Court to take up the application of the defendant for amendment of the decree and to proceed to deal with it according to law, paying due regard to what we have stated above. We have mentioned that there was another allegation about interest, that the decree was not in accordance with the judgment in respect of interest also. We have not gone into this matter but the lower Court will do so when the case goes back. The lower Court must take up the judgment and the decree and see whether the latter is in accordance with the former. The applicant will have his costs, including in this Court fees on the higher scale.


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