KAMLA DEVI Vs. PT MAN I LAL TEWARI

JUDGEMENT

(1.) This appeal by special leave challenges the order passed in review by the learned single Judge, whereby he reviewed his earlier order passed in revision and held that a personal decree should be passed, overruling the contention regarding limitation.

(2.) Shri Dikshit, appearing for the appellant, has strenuously pressed three points before us. He has contended that the whole decree was a nullity, because the minor against whom the suit was filed had not been represented properly or in accordance with law. There being no representation of the minor, the decree as against him, was void. Later in the course of the arguments, he brought it to our notice that another suit had been filed raising this ground, and prayed that we should not pronounce on the merits of this contention. We would rather leave it to the court before which any suit may be pending to decide it on its merits. Anyway, that point is not pressed for the present purpose.

(3.) Shri Dikshit, secondly, contended that the right to a personal decree had been specifically abandoned in the plaint by the respondent and that, therefore, the order passed in review, granting a personal decree was contrary to the very stand taken by the respondent in his plaint. we find no basis whatever for this submission. On the other hand, counsel for the respondent, Shri Goyal has drawn our attention to the judgment of the original court wherein it is stated "It is not disputed that the decree out of which these proceedings have arisen had provided that if the sale proceeds of the mortgaged property were insufficient to satisfy the decree, it was open to the decree-holder to recover the balance from the person or other properties of the judgment-decrees. Nothing has been brought to out notice to indicate that a right to a personal decree has been given up. All that has been stated in the plaint and holds good even today, is that while executing the personal decree, the plaintiff will be subject to the provisions of Section 4 of the U. P. Debt Redemption Act 1940. Shri Goyal, appearing for the respondent, even now agrees to this position.