BECHE LAL Vs. HEM SINGH

JUDGEMENT

(1.) THIS is an application in revision against an order allowing an application for amendment of, a decree under Sections 151, 152 and 153, Civil P. C. The facts briefly stated are as follows :

(2.) ONE Bhudher Singh executed a usufructuary mortgage on 18-8-1893 in favour of one Balwant singh mortgaging 7 biswas, 2 kachwansis and 10 nanwansis in village Bijgawan for a consideration of Rs, 400/-, A deed of further charge was executed about a year later on 15-8-1894, securing a sum of Rs. 200/ -. Bhudher Singh died leaving Khanzade Singh as his legal representative. Balwant Singh mortgagee sub-mortgaged his mortgagee rights by a deed, dated 31-5-1915. in favour of one Kunj Behari Lal for a consideration of Rs. 200/ -. Khanzade Singh, the representative of the mortgagor, purchased the mortgagee rights of Balwant Singh at an auction sale in execution of a decree and stepped into Balwant Singh's shoes. This would be, however, subject to the right of the sub-mortgagee, Kunj Behari Lal. In 1927, Kunj Behari Lal, the sub-mortgagee, sued upon his sub-mortgagee, impleading Balwant Singh and Khanzade singh as defendants and claiming a sum of Rs. 1,582/10/ -. He prayed that this sum may be recovered by sale of either the proprietary rights in 7 biswas, 2 kachwansis and 10 nanwansls or, if that was not possible, by sale of the mortgagee rights therein. The suit was decreed on 4-11-1927. The Court ordered a decree for sale of tbe mortgagee rights to be prepared under order 34 Rule 4. Civil P. C. Inspite of the express terms of the judgment that the decree for sale was to be in respect of the mortgagee rights, a decree was prepared mentioning the proprietary rights in the property mortgaged to be sold. Nobody, however, noticed this discrepancy between the judgment and the decree.

(3.) IT appears that Kunj Behari Lal had an undisclosed partner with him in the transaction of the sub-mortgage and also in the transaction of the suit. Kunj Behari Lal and this undisclosed partner executed a deed of sale in respect of the half share in the sub-mortgage and the preliminary decree to one Kanhaiya Lal. In the sale deed it was expressly mentioned that the sub-mortgage was with respect to the mortgagee right in 7 biswas and odd share and that a suit on the basis of the sub-mortgage for the sale of the mortgagee rights had been instituted by Kanhaiya lal. Thereafter, Kanhaiyalal and Kunj Behari Lal jointly made an application for the preparation of a final decree. On 10-8-1929, a final decree was prepared and the description of the property to be sold was copied from the preliminary decree. No money having been paid under the decree, an execution application was made for sale of the property. Notices were served on Khanzade singh. Under Order 21, Rule 66, Civil P. C. an order for sale was passed. On 20-7-1933 khanzade Singh applied for postponement of the sale for a week. The sale was postponed to 28-7-1933. The property was ultimately sold on that date by the Collector and was purchased by the decree-holders themselves in lieu of the decretal amount and they certified full satisfaction of the decree and possession was delivered to them on 10-8-1934.