1. Defendants Nos. 1 and 2 mortgaged the suit properties in favour of plaintiff under a usufructuary mortgage deed, in which however no reference was made to the fact that the lands were security for a loan taken by defendants Nos. 1 and 2 from Government. The plaintiff paid off various instalments due for the Government loan and sued for the amount so paid. He asked for personal decree against defendants Nos. 1 and 2 and also against the third defendant who was a subsequent purchaser. Judgment was pronounced on 29th January 1921 and was to the effect that a decree would be passed in favour of the plaintiff as prayed for in the plaint. Accordingly, a decree was drawn up making third defendant also personally liable.
2. It is now admitted by plaintiff that third defendant should not have been made personally liable.
3. Warrant to arrest third defendant was issued and third defendant states that he only then came to know of the wrong direction in the decree and on 10th September 1921 he applied in the course of the execution proceedings objecting to the execution but was told by the Court to apply for amendment of the decree. So. on 20th September 1921, he filed a petition under Sections 151 and 152 of the Code of Civil Procedure to amend the decree. On 18th January 1922 this petition was dismissed on the ground that the petitioner should not have applied for an amendment of decree but should have applied for a review of the judgment.
4. On 3rd February 1922 an application for review of judgment was made and this was dismissed on the ground that it was out of time. The present revision petition is against this order.
5. I am asked, on the authority of Hanuman' Lal v. Ram Peari Koer 60 Ind. Cas. 308 : 2 P.L.T. 251 and some other cases, to say that it was perfectly Open to the District Munsif to make the required amendment and he should have done so. But the respondent points out that the present revision petition is not with reference to the order refusing to amend. I think that difficulty might be got over, but the respondent refers me to the decision in Pitchayya v. Subba Rao 34 Ind. Cas. 787 : 3 L.W. 499 a decision of a Bench of this Court, wherein it is held that a Court his no power to amend a decree, when it is in conformity with the judgment, not even if there is an error apparent on the face of the judgment. I think therefore I must hold that the decision of the District Munsif on the petition to amend was correct.
6. I must confine myself to the question whether there is ground for revision of the order dismissing the application for review as out of time.
7. It has been argued by the petitioner, that the application for review was in time because, under Section 14 of the Limitation Act, the time taken up in the infructuous proceedings by way of application for amendment must be excluded. It is very doubtful, however, whether Section 14 could be applied at all, because it can scarcely be said that the District Munsif was unable to entertain the petition for amendment from defect of jurisdiction or other cause of a like nature. But the time so taken up might be excluded from calculation under Section 5 of the Limitation Act if the Court were satisfied that the efforts of the petitioner in so prosecuting proceedings were bona fide and furnished sufficient cause within the meaning of Section 5. It is evident that the District Munsif, did in fact consider that such time might be excluded but he has not considered' the delay because no explanation was. given for the delay after 18th January 1922 (on which date the order dismissing the amendment petition was passed) up to 3rd February 1922 when the application for review was filed.
8. The respondent, however, points out, it may be correctly, that the question of excusing delay under Section 5 was a matter for the discretion of the District Muisif and this Court cannot, interfere under Section 115 of the Code of Civil Procedure with the exercise of that discretion.
9. But the decree making the third defendant personally liable was wrong and the judgment illegal. There must be some way of remedying it and I think the case already referred to, Pitchayya v. Subba Rao 34 Ind. Cas. 787 : 3 L.W. 499, points the way.
10. The petition I.A. No. 1619 of 1921 filed; on 20th September 1921 may be itself treated as an application for review and: the subsequent review petition treated merely as a continuation of the former petition. The delay in presenting I.A. No. 1619 of 1921 may be excused for the third defendant was unaware of the mistake in the decree.
11 This revision petition is alluwed; and the order set aside and the District Munsif will be directed to dispose of the application for review on its merits. There will be no order as to costs.