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Makund Ram Katholia Vs. Harbans Lal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1935All841; 158Ind.Cas.618
AppellantMakund Ram Katholia
RespondentHarbans Lal
Excerpt:
- - , and the applicant has therefore every reason to complain if the order was passed behind his back and without giving him an opportunity of being heard......far a relief for a sum of rs. 467 which had passed by sale of a decree into the hands of the present applicant, who was not a member of the family which owned the joint house which was subject to the mortgage. according to the applicant, he was not a necessary party to the suit as he had nothing to do with the mortgaged property. the court gave a decree against the defendants for sale of such of the property as was in their hands. the present applicant made an application for the amendment of the decree about two months later, claiming that he had nothing to do with the mortgaged property and had merely obtained a decree for rs. 467 against some of the members of the family. the court considered the matter and passed an order as the result of which the amount of rs. 467 was.....
Judgment:
ORDER

Kendall, J.

1. The facts out of which this application has arisen are as follows : The plaintiff-opposite-party brought a suit for sale on foot of a mortgage. The property mortgaged was alleged to be one-third of a house but as that house had been subject to partition the mortgagee also prayed far a relief for a sum of Rs. 467 which had passed by sale of a decree into the hands of the present applicant, who was not a member of the family which owned the joint house which was subject to the mortgage. According to the applicant, he was not a necessary party to the suit as he had nothing to do with the mortgaged property. The Court gave a decree against the defendants for sale of such of the property as was in their hands. The present applicant made an application for the amendment of the decree about two months later, claiming that he had nothing to do with the mortgaged property and had merely obtained a decree for Rs. 467 against some of the members of the family. The Court considered the matter and passed an order as the result of which the amount of Rs. 467 was excluded from the property against which the relief was given. About one and a half years later the decree-holder, the opposite-party, made an application which virtually amounted to an application for a, reversal of the order passed before, namely that the sum of Rs. 467 should again be included in the property against which relief was to be given by the decree. The Munsif, without issuing notice to the present applicant, and on the very next day, passed an order purporting to be an order under Section 152, Civil P.C., to the effect that the mistake in the decree was only clerical, and directed that it should be corrected.

2. The present application is made on the ground that the correction now ordered is not in conformity with the judgment of the Court, and that the applicant had had no notice of the opposite-party's application.

3. The question of whether the decree as it now stands is in accordance with the judgment is not by any means a simple one. What is quite certain is that if there was a mistake in the decree as it stood before it, was corrected on the application of the opposite-party, the mistake was not a clerical one. On the contrary, the entry in the decree to which objection was made by the opposite-party had been made deliberately by the Court on the application of the applicant after due consideration of the circumstances. It may have been right or it may have been wrong, but it was not an error that could be corrected by an order passed under Section 152, Civil P.C., and the applicant has therefore every reason to complain if the order was passed behind his back and without giving him an opportunity of being heard.

4. I therefore allow the application, set aside the order of the trial Court dated 10th April 1934 amending the decree, and direct that the matter be disposed of after the applicant has been given an opportunity of being heard in opposition, to the opposite Party's application for amendment.


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