NATHURAM Vs. ARJUNA S/O CHATURIA

JUDGEMENT

(1.) THE circumstances in which this vision petition arises are somewhat unusual, they are, that on 3 -7 -1951 the Plaintiff Nathuram who is the applicant here instituted a suit in the Court of Civil Judge, Second Class, Gwalior, for the recovery of Rs. 996/12/ - on the basis of a bond from a person whom he described in the plaint as Arjuna S/o Chitariya. The summons in the suit was issued on 3 -7 -1951 in the name of "Arjuna S/o Chaturiya" that is in the name of the present non - applicant. The process server accompanied by the Plaintiff Nathuram went to the residence of the non -applicant Arjuna S/o Chaturiya and the summons was tendered to him. The applicant identified Arjuna S/o Chaturiya, that is the non -applicant here, as the Defendant. The non -applicant refused to accept the summons. Thereupon it was affixed on his residence and a report to that effect was made to the Court by the process server. The non -applicant Arjuna S/o Chaturiya did not appear in the Court. The suit proceeded 'ex -parte' and subsequently a decree was passed against "Arjuna S/o Chaturiya", the Defendant named in the plaint. The Plaintiff decree -holder then took out execution proceeding of the decree against the non -applicant.

(2.) "Arjuna son of Chaturiya", the nun -applicant, appeared in the execution proceedings and took the objection that the decree sought to be executed was not against him but against some other person named "Arjuna S/o Chhitariya. This objection was upheld and the execution proceedings were dismissed. Thereafter the Plaintiff applied to the Court which had passed the decree praying that the decree be amended by correcting the name of the judgment -debtor's father. The application was purported to be one under Sections 151 and 152, Code of Civil Procedure The learned Civil Judge rejected the application. He held that as the decree passed in the suit was against the Defendant named in the plaint there was no clerical error which could be corrected under Section 152. He also took the view that what the applicant was seeking by the amendment was to obtain a decree against a person who was not a Defendant in the suit. He also held that the summons in the suit was not served on the Defendant named in the plaint and that this was not a case in which the Court could exercise its lowers under Section 151, Code of Civil Procedure The Plaintiff has now filed this revision petition against the order of the learned Civil Judge.

(3.) IN my opinion the order of the learned Civil Judge dismissing the application for the amendment of the decree cannot be upheld. The learned Civil Judge was no doubt right in holding that the applicant could not possibly ask for the correction of the decree under Section 152, Code of Civil Procedure because the decree passed was in fact against the person named as Defendant in the plaint. But he was not right in holding without any enquiry that "Arjuna S/o. Chhitariya" the Defendant named in the suit was a person different from the present non -applicant and that the present non -applicant was not the real Defendant and that the summons in the suit had not been issued and served on the real Defendant. The learned Judge also erred in thinking that the Plaintiff -applicant was without any remedy. There are two calculable possibilities in the present case. The first is that "Arjuna S/o. Chhitariya" who was named in the plaint was the real Defendant and a person quite distinct from the present non -applicant. Obviously then the decree in the suit was passed "against a person against; whom no summons had been issued or on whom no summons had been served and who was not given an opportunity to defend the suit.