GANESH Vs. RAM LALAJI MAHRAI BIRAIMAN MANDIR

JUDGEMENT

(1.) THESE two applica tions having been referred to a Full Bench by the learned Acting Chief Justice by an order dated 28-7-1972 have come up before us. Application No. 3303 of 1970 was filed on 14-5-1970 under Section 151 of the Code of Civil Proce dure. The other application filed on 23-3-1969 is under Sections 151 and 152 of the Code of Civil Procedure. Before the learned Acting Chief Justice a con tention was raised that Sections 151 and 152 of the Code of Civil Procedure were not applicable. In support of this con tention reliance was placed on Shuiaat-rnand Khan v. Govind Behari. (AIR 1934 All 100 (2)), On behalf of the ap plicant, however, reliance was placed on Ruhulghane v. B. Uma Shankar, (AIR 1944 Oudh 5). In view of the apparent conflict between the decisions in these two cases reference to a Full Bench was made by the learned Acting Chief Justice.

(2.) SUIT No. 254 of 1952 was in stituted by the applicant against Ram Lal, Ganesh and Smt. Saraswati. inter alia, for possession of a house describ ed at the foot of.the plaint. The house, which was the subject-matter of the suit, was purchased by the plaintiff from Panna Lal under a sale deed dated 8th June. 1950. Panna Lal entered appear ance but did not contest the suit. In his written statement he admitted hav ing sold the suit property to the plaintiff and further pleaded that the other de fendants were in occupation of the house as tenants. The suit was, however, con tested by Ganesh and Smt. Saraswati. It was pleaded by them that they were not in possession of the property as tenants but in their own right as ownera Amongst other pleas, a plea of adverse possession was also taken. It was. how ever, nowhere stated in the written statement that the subject-matter of the suit was not the same property which was sold by Panna Lal to the plaintiff under the sale deed dated 8-6-1950. The trial court framed a number of issues which were answered in plain tiff's favour. The suit accordingly was decreed on 27-5-1957 for possession of the house in suit An appeal against the decree of the trial court was pre ferred by Ganesh. It appears that dur ing the pendency of the suit in the trial court Smt. Saraswati. who was the mother of Ganesh, died. No application was filed by the plaintiff for substitut ing the names of the legal representa tives of Smt. Saraswati in her place. The appeal filed by Ganesh was dismis-se.d by the learned Additional Civil Judge, Johansson 15-10-1958. Thereafter Ganesh filed a Second Appeal (S. A. No. 1612 of 1958) in this Court. This se cond Appeal was dismissed by a learn ed Single Judge under Order XLI, Rule 11. Civil P. C. on 27-1-1959. Thereafter the plaintiff-decree-holder executed the decree. A warrant for delivery of possession was issued and when the Amin went to deliver posses sion it was found out that the descrip tion of the northern and southern boundaries of the property, as mention ed in the decree, did not tally with the actual northern and southern boundaries of the house on the spot. The Amin under the circumstances returned the warrant unexecuted along with a report mentioning therein the discrepancy. The discrepancy, however, was only this; 'The boundary which was shown as the northern boundary in fact was the southern boundary of the house'. Similarly the southern boundary as shown in the decree was actually the northern boundary. In the plaint the property in suit was described as house No. 125 situate in Mohallah Chou-dharana. The boundaries of the house in suit, were also mentioned in the plaint. It. however, appears that nei ther in the trial court nor in the appel late court nor even in the second Ap peal in this Court was it ever alleged by Ganesh that the house in suit was not the same as the house conveyed to the plaintiff by Panna Lal under the sale deed dated 8-6-1950. That is to save, there never existed any dispute be tween the parties concerned in regard to the identity of the house which was the subject-matter of the suit The execution application, however, was dis missed by the executing court in view of the report submitted by the Amin. Thereafter the Plaintiff-decree-holder filed an application in the court of the learned Additional Civil Judge, Jfaansf for the amendment of the decree with a view to get the mistake in or mis-description of the northern and southern boundaries corrected. This application was contested, but the learned Judge al lowed the application. In his order dated 11-5-1963 it was noted that there was no dispute about the property in volved and its identity. Against this order Civil Revn. No. 753 of 1963 was filed by Ganesh. During the pendency of this revision the decree-holder oppo site party filed application No. 622 of 1965 on 23-3-1965. The revision was allowed by D. S. Mathur. J. on 24-3-1965 solely on the ground that the learned Additional Civil Judge. JfaansI had no jurisdiction to amend the de cree in view of the fact that Second Ap peal No. 1612 of 1958 was dismissed by this Court The learned Judge in his judgment allowing the revision, how ever, observed as follows: - 'The proper remedy available to the plaintiff-opposite party was to apply to the High Court for amendment of the decree. Such an application has since been made but it shall be disposed of separately. The revision Is hereby allowed and the order dated 11-5-1963 Is set aside. The application for amendment of the decree shall stand rejected though simi lar application made before the High Court shall be considered in due course." It may here be also mentioned that on 24-3-1965 the learned Judge also passed the following order on Civil Misc. Appln, No. 622 of 1965:-

(3.) SRI S. P. Kumar, learned coun sel for the contesting judgment-debtor raised two preliminary objections. One was that the present applications, if at all. could only have been made in Second Appeal No. 1612 of 1958 and not in Civil Revision No. 753 of 1963. The other was that Smt. Saraswati, one of the defendants, having died during the pendency of the suit and her legal re presentatives not having been substitut ed. the suit as against her abated and that, therefore, also the two applications were not legally entertainable and deserv ed to be dismissed. In our opinion there is no substance in these two objections. The learned counsel himself submitted that these applications could be and ought to have been made in the afore said Second Appeal. The learned coun sel for the applicant made an oral pra yer to us that if need be the applica tions may be treated as applications fil ed in the said Second Appeal. We see no objection to accepting this prayer. In fregard to the second objection the [learned counsel for the applicant sub-jmitted that the decree of the trial court was passed against Ganesh, who occupied a dual capacity, he was a defendant in ifiis own right and on the death of Smt. jSaraswati, he being one of the legal re presentative, if not the sole representa-itive. must be deemed to have represent-led the estate, if any, of Smt. Saraswat Even if we proceed on the basis that I the suit as against Smt. Saraswati had 'abated. the two applications cannot be held to be affected in any way as to their maintainability. In the decree) Smt. Saraswati was not shown as a judgment-debtor. Obviously, therefore, if the amendment prayed for is allow ed, it cannot be said that there will be any alteration in the decree which will in any way prejudicially affect the legal representatives of Smt. Saraswati. if any. In regard to the first preliminary objection we may further mention that from the judgment of Mathur, J., dated 24-3-1965 allowing Revision No. 753 of 1963 and the order of the learned Judge of the same date passed in Civil Misc. Application No. 622 of 1965. it Is clear that the learned Judge did not give any decision on the question whether the decree could or could not be amend ed as prayed by the decree-holder. In fact the learned Judge expressly left this question to be dealt with by the High Court, inasmuch, as. in his view, such an application could only be appropriately considered and decided by] the High Court We. therefore, overrule the preliminary objections.