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Lakshmana Iyengar Vs. Narayana Iyengar - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Reported inAIR1924Mad225
AppellantLakshmana Iyengar
RespondentNarayana Iyengar
Cases ReferredPitchayya v. Subba Rao
Excerpt:
- .....3 l.w. 499, a decision of a bench of this court, wherein it is held that a court has 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 the amendment must be excluded. it is very doubtful, however, whether section 14, could be applied at all,.....
Judgment:

Hughes, J.

1. Defendants 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 defendant 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 a personal decree against defendants 1 and 2 and also against 3rd 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 decree was drawn up making 3rd defendant also personally liable.

2. It is now admitted by plaintiff that 3rd defendant should not have been made personally liable.

3. Warrant to arrest 3rd defendant was issued and 3rd 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 Section 151 and 152 of the Code of Civil Procedure to amend the decree. On 18 January, 1922 this petition was dismissed on the ground that the petitioner should not have applied for amendment of decree but should have applied for a review of the judgment.

4. On 3rd February, 1922, 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. Rama Peari Koer [1921] 2 Pat. L.T. 151 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 [1916] 3 L.W. 499, a decision of a Bench of this Court, wherein it is held that a Court has 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 the 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 was 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 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 Munsif 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 3rd 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 [1916] 3 L.W. 499, points the other way.

10. The petition I.A. No. 1619, of 1921 filed on 20th September, 1981, may be itself treated as an application for review, the subsequent review petition being treated merely as a continuation of the former petition. The delay in presenting I. A. No. 1619 of 1921 may be excused, for the 3rd defendant was unaware of the mistake in the decree.

11. This revision petition is allowed, 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.


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