APPAT KRISHNA PODUVAL Vs. LAKSHMI NATHIAR AND ORS.

JUDGEMENT

(1.) DEFENDANT 10 in O. S. No. 543 of 1933 on the file of the District Munsif's Court, Ottapalam is the petitioner. O. S No. 643 of 1938 was filed by the respondents who are jenmies for recovery of Michavaram against some of the defendants who are the kanomdars. The respondents represented two thavazhis, the tarwad consisting of three branches. The other thavazhi is represented by the other defendants. A simple mortgage decree was passed in favour of the plaintiffs on 9th August 1934. The final decree was passed on 27th July 1936. E. P. No. 1277 of 1935 was filed by the plaintiffs for bringing the property to sale and a Commissioner was appointed to report as to the survey numbers and the property that was sought to be sold and in his report it is stated that the parties are not at issue in respect of items 1 and 4 of the schedule to the decree. In E. P. No. 1277 of 1935 an order was made directing the plaintiffs to have the survey numbers given in the decree and the plaint corrected, and that the sale proclamation to mention the correct survey numbers and measurements. The application was disposed of by this order and the corrections were not included in the sale proclamation. The plaintiffs filed another execution petition, E. P. No. 288 of 1943 where for the first time it was pointed out that the survey numbers pertaining to item No. 4 were not correct and that wrong numbers have been given in the plaint and the decree. The learned District Munsif observed in his order on the said execution petition that it was not a proper petition before the Court on which the Court could initiate proceedings and that the mistake in the petition was material in its effect and the execution cannot proceed. As against the said order A. S. No. 423 of 1944 was filed and the learned District Judge held that the observations of the learned District Munsif were not correct and the execution petition was registered under Rule 17 and had reached the stage of setting proclamation of sale, and that the only question to be decided was whether execution should issue in the face of survey numbers for one of the items item No. 4 being incorrect. The learned District Judge however held that it was an execution petition filed in accordance with law.

(2.) THE plaintiffs applied in I. A. No. 1404 of 1946 to the District Munsif of Ottapalam for amendment of the plaint schedule and the preliminary decree by striking out survey Nos. 9/6, 164/1 shown in respect of item 4 of the preliminary decree schedule and item No. 4 of the plaint schedule and substituting 6/1, 2, 3, 4, 5, 6, 7, 8 and 9 in the place of the above numbers. The application was opposed by the petitioner. The learned District Munsif however ordered the amendment. As against the said order the present revision petition is filed.

(3.) THE further contention of the learned counsel is that in any event under Section 152 the Court has no power to grant amendment of the plaint though in cases where there are accidental slips or omission amendment of the decree may be granted.