Skip to content


Badri Pande Vs. Chhangur Pandey - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1933All102; 140Ind.Cas.113
AppellantBadri Pande
RespondentChhangur Pandey
Excerpt:
- - the view of the court below that the defendant has had no opportunity o-f meeting the plaintiff's case as stated in the application for amendment is clearly untenable. the defendant knew perfectly well what properties the plaintiff desired to be sold for satisfaction of his claim under the mortgage; i am of opinion that the learned munsif failed to exercise a jurisdiction vested in him by law in refusing to direct suitable amendment in the preliminary and final decrees. no amendment of the plaint is necessary, as it clearly prays for sale of the property entered in the mortgage-deed which was in suit and which was made part of the plaint......set aside the order of the court below and direct that the i preliminary and final decrees be am end-led by inserting in them the particulars |of the mortgaged property as stated in the mortgage-deed in suit. as the respondent has not appeared to contest this application, no order is made as to
Judgment:
ORDER

Niamatullah, J.

1. This is an application in revision from the order passed by the Munsif of Shahganj, District Jaunpur, rejecting an application for amendment of decree. The plaintiff applicant instituted a suit for enforcement of a mortgage-deed, dated 23rd May 1923, by sale of the property specified therein. The particulars of the mortgage were fully recited in the plaint and in the relief claimed, mention was made of 'the hypothecated property,' sale of which was prayed for. By a clerical mistake, the property was not detailed at the foot of the plaint. The suit was decreed and a preliminary decree was prepared in due course, embodying the usual terms. Under the heading 'specification of the mortgaged, property'' it was stated 'properly as mentioned in the relief.' The relief, so far as it is quoted in the decree, makes a reference to the 'hypothecated property.' A final decree was subsequently passed, but it contained no specification of the mortgaged property. The plaintiff applied to the learned Munsif, who had passed the decree praying that the plaint and the preliminary decree be amended so far that the description of the mortgaged property, as given in the mortgage-deed, be inserted in the plaint and the preliminary decree. The application has however been rejected on the ground that it is not

reasonable to add the new plots in the plaint and the decree without giving the defendants opportunity to put in their defence.

2. I do not think the order impugned in revision can be supported. The plaintiff's suit was based on the mortgage-deed, which was made part of the plaint. There can be no doubt, whatever, that the plaintiff had prayed for sale of the properties specified in the mortgage-deed. There can be equally no doubt that the Court decreed the plaintiff's claim for sale of the property as described in the mortgage-deed. The preliminary decree should have mentioned all the particulars of the mortgaged property as they appeared in the mortgage-deed. The view of the Court below that the defendant has had no opportunity o-f meeting the plaintiff's Case as stated in the application for amendment is clearly untenable. The plaintiff does not pray for the decree being extended to properties other than those to which his suit related. The defendant knew perfectly well what properties the plaintiff desired to be sold for satisfaction of his claim under the mortgage; and if he had had any defence, he would have put it forward. I am of opinion that the learned Munsif failed to exercise a jurisdiction vested in him by law in refusing to direct suitable amendment in the preliminary and final decrees. No amendment of the plaint is necessary, as it clearly prays for sale of the property entered in the mortgage-deed which was in suit and which was made part of the plaint. I allow this revision, set aside the order of the Court below and direct that the I preliminary and final decrees be am end-led by inserting in them the particulars |of the mortgaged property as stated in the mortgage-deed in suit. As the respondent has not appeared to contest this application, no order is made as to


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //