KRISHNAYA PARBHAYA CHINTALWAR Vs. MEGHRAJ PAPARAM TELI

JUDGEMENT

(1.) THE appellants' father, Parbhaya, mortgaged two houses to the respondent for Rs. 1,800 in 1919. One of those houses was old municipal No.8425. THE respondent then filed a suit (suit No.194 of 1929) to recover the mortgage amount by the sale of the mortgaged houses. In the interval a city survey had taken place, and old municipal No.8425 and two open sites, old municipal Nos. 8426 and 8428, were all included in city survey No.8012 (new municipal No. 249 ). In the plaint in the suit the houses mortgaged were described as city survey No.8012old municipal No.8425, new municipal No.249. It seems to have escaped the notice of the parties that city survey No.8012 (new municipal No.249) comprised two other properties besides old municipal No.8425 which had been mortgaged with the respondent. A decree was eventually passed in which the properties as described in the plaint were ordered to be sold for the realization of the mortgage amount.

(2.) THE respondent presented darkhast No.1487 of 1932 for the execution of the decree, and the sale of city survey No.8012. It then came to the notice of the appellants that besides the old municipal No.8425, their two other open sites, old municipal Nos. 8426 and 8428, were going to be sold since they were all included in the city survey No.8012. THEy, therefore, made an application to the executing Court on October 23, 1935, requesting that it should be clearly stated in the sale proclamaion that only old municipal No.8425 out of city survey No.8012 was to be sold. THE executing Court then held that there being no difference in the decree and in the darkhast application as regards the description of the property, the appellants' contention could not be inquired into in execution proceedings, since that contention amounted to saying that the decree itself was wrong. THE application was, therefore, rejected, and then the appellants made another application to the Court which passed the decree requesting that the description of the properties in the decree should be suitably amended, that the amendment should be incorporated also in the certified copy supplied to the decree-holder, and that till then the darkhast proceedings should be stayed. That application was rejected on the ground that in view of the boundaries of the properties mortgaged as described in the mortgage deed, the whole of city survey No.8012, comprising old municipal Nos. 8425, 8426 and 8428, was included in the mortgage. Against that order the appellants presented an appeal to the District Court, and the learned District Judge dismissed the appeal on the ground that the order complained of having been made under Section 151 of the Civil Procedure Code and not falling under Section 47, it was not appealable.

(3.) IT was in accordance with this suggestion that a second application was made by the appellants to the Court which passed the decree to have the decree amended. IT cannot be said that this application was made under Section 47 of the Civil Procedure Code as it did not relate to the execution of the decree but to the correction of the decree. The appellants wanted that the pending execution proceedings should be stayed until the decree was corrected. The decree could not be corrected by the executing Court, and hence they could not make any such application in execution proceedings. IT is evident from the warding of the application as well as from the nature of the reliefs prayed for that it was made to the Court which passed the decree and not to the executing Court. Hence the order passed by that Court cannot be said to be an order made under the provisions of Section 47 of the Civil Procedure Code, Nor can it be regarded as a decree in a suit. IT is true that if the decree was amended, then the other side could have appealed from the amended decree. But, when the Court refused to amend the decree, there was no decree from which an appeal could be preferred. The order against which the appellants filed their appeal before the learned District Judge was not a decree, but an order refusing to amend the decree. Such an order is not one of the orders included in Order XLIII, Rule 1, of the Civil Procedure Code, nor does it amount to a decree itself.