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Basanti Vs. Kunj Bihari Lal - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in44Ind.Cas.998
AppellantBasanti
RespondentKunj Bihari Lal
Excerpt:
mortgage decree, execution of - property assessed to revenue--decree describing property as muafi--objection by purchaser in execution of money decree--identity of property--objector not deceived--court, duty of, to correct error in decree where no question of doubt. - - it is not as if the opposite party had been in any way deceived when they purchased the property, for the burden upon it was clearly notified and we think it utterly unjust to allow a slight misdescription, such as has crept in the present case, to prevent a court from doing what is right......is no muafi in these villages or mahals, that the property that they have purchased is not revenue-free property and is, therefore, not the property mortgaged. inquiry has been made and it is established beyond all doubt whatsoever that these properties are not revenue-free and never have been; that the description revenue-free' entered in the mortgage-deed was a mistake, though the properties may perchance have been locally spoken of as revenue-free, but it is also equally clear that the property purchased by the respondents is the property that was mortgaged to the appellant, the court below has held that it is prevented by reason of the misdescription in the decree from putting this property to sale and has refused the decree-holder's application. it is not as if the opposite party.....
Judgment:

1. This appeal and Execution First Appeal No. 280 of 1917 cover the same point and are connected. One Jamil-ur-Rahman in the year 1910 borrowed Rs. 4,000 from Musammat Basanti, the appellant, under a mortgage deed and hypothecated certain property in two villages. The description of the property is as follows: No. 1, Mauza Daranagar muafi Mahal Mustahkam Rang Surkh three biswas fifteen biswansis out of fifteen biswas, situate in Pargana Hasanpur, district Moradabad (the names of the villages on boundaries of the village are also given); No. 2, Mauza Walipore, Mahal Sufaid muafi, 2 1/2 biswas out of 20 biswas, Pargana Hasanpur, District Moradabad. In this case also the bounding villages were named. The description in the mortgage-deed contained one error. These properties were not revenue-free but actually were assessed to small sums of revenue. It is probable that they were commonly spoken of as revenue-free. The mortgagee sued upon the basis of the mortgage and obtained a decree. The preliminary decree and the final decree described the property as it is described in the mortgage-deed. In the meantime these properties had been attached in execution of a simple money-decree against the mortgagor and were purchased in case of one village by the respondent in the present appeal, Kunj Behari Lal, and in the other by the respondents, Muhammad Hashmat Ali, etc. When proclaimed for sale the burden of the mortgagee's loan upon the property was duly notified. The mortgagee has now applied for execution of the decree by sale of the mortgaged property. The auction-purchasers under the simple money-decree have objected that there is no muafi in these villages or mahals, that the property that they have purchased is not revenue-free property and is, therefore, not the property mortgaged. Inquiry has been made and it is established beyond all doubt whatsoever that these properties are not revenue-free and never have been; that the description revenue-free' entered in the mortgage-deed was a mistake, though the properties may perchance have been locally spoken of as revenue-free, but it is also equally clear that the property purchased by the respondents is the property that was mortgaged to the appellant, The Court below has held that it is prevented by reason of the misdescription in the decree from putting this property to sale and has refused the decree-holder's application. It is not as if the opposite party had been in any way deceived when they purchased the property, for the burden upon it was clearly notified and we think it utterly unjust to allow a slight misdescription, such as has crept in the present case, to prevent a Court from doing what is right. We allow the appeal. It is the Court's duty to see that I all errors are amended when there is no question of doubt. The Court executing the decree is the Court which passed the decree. We direct that the word 'muafi' be struck out of the decree and direct that the Court below proceed to put the property to sale in the manner laid down by law. The appellant will have her costs in both Courts.


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