NAMDEO AMRUT GOHANE Vs. NARAYAN SHAMRAO DESHMUKH

JUDGEMENT

(1.) THE defendant has filed this revision application being aggrieved by the judgment passed by the Extra Assistant Judge, Shri Wankhede, in a miscellaneous Civil Application, which was decided by him. He allowed that application of the plaintiffs ordering that the decree should be amended indicating that the decretal amount shall also be a charge on the suit field.

(2.) THE plaintiffs had filed a suit in the year 1963 for recovery of a sum of Rs. 6136 and also for a charge on the suit field for this sum. Their complaint was that they had sold a field to the defendant on 29-10-1958 for Rs. 5500/ -. A sum of Rs. 300/- was paid on that day as earnest money by the defendant. Under the agreement, the defendant was to pay the balance consideration by instalments. He was to pay the first instalment of a sum of Rs. 1300/- on 15-2-1960 and to go on paying Rs. 1300/- every year till the last instalment on 15-2-1963. Because he has not paid any instalment, the plaintiffs had filed this suit for the unpaid price of the field. The trial Court dismissed the plaintiffs' suit. Therefore, they went in appeal before the District Court, Nagpur.

(3.) THE plaintiffs succeeded in appeal and the learned Assistant Judge (Mr. Wankhede) who decided also the appeal passed a decree in their favour. It, however, appears that there was an omission in the decree drawn regarding the charge on the field which was the subject-matter of the sale and on account of which the unpaid amount was not paid. The plaintiffs had, therefore, applied under Sections 151 and 152 of the Civil P. C. stating that they had filed a suit not only for the recovery of an unpaid price but also claimed a charge decree on the property. Their contention in the application was that the appellate Court had allowed the appeal and decreed the suit but the decree drawn up did not mention that the decretal amount would be a charge on the property in suit. According to them, this mistake in the decree drawn was accidental and therefore required to be corrected. Their complaint was that the defendant had no other property and it would be impossible to recover the sum unless it is charged on the property. They are entitled to a charge under Section 55 of the Transfer of Property Act. They, therefore, sought an amendment of the decree by this application. The defendant opposed the amendment. The learned Extra Assistant Judge after considering the matter allowed the application and ordered that the decree should be amended saying that the decretal amount shall be a charge on the field in suit. This order is now challenged by the original defendant.