PUNJAB NATIONAL BANK Vs. S S DAL MILLS

JUDGEMENT

(1.) The petitioner-bank filed a suit against the respondents for the recovery of Rs. 2,00,151/- which was decreed by the trial Court by judgment and decree dated August 6, 1988. The plaintiff thereafter moved an application purporting to be one under Section 151 of the Civil Procedure Code seeking amendment of the said judgment and decree on the allegation that the suit was instituted for the recovery of the amount based on mortgage and the judgment and decree deserve to be corrected as to be one under Order 34 Rules 4 and 5 of C.P.C. against defendants 2, 3 and 5. Learned trial Court by order dated December 4, 1990 dismissed the application being without merit. This is how the present revision came to be filed.

(2.) Learned counsel for the petitioner vehemently contended that the learned trial Court has acted with material irregularity and illegality in dismissing the application. The suit was for the recovery of amount by sale of mortgage property and, therefore, modification as prayed for ought to have been granted.

(3.) After hearing learned counsel for the parties, I find that the contention is without merit. Learned counsel could not point out that any finding was recorded by the trial Court while decreeing the suit that any property was mortgaged for securing the amount of loan. Nor could it be pointed out that the plaintiff claimed an issue thereon. In the absence thereof, the trial Court was perfectly justified in declining the prayer of the plaintiff-petitioner in modifying a simple money decree to a decree for the recovery of the amount by sale of the mortgaged property. Even otherwise, if the respondent-judgment debtors own some property the same could very well be attached and sold in execution of a simple money decree and it is not shown as to why this step was taken. It has not even been pointed out that the plaintiff-bank has taken steps to execute the simple money decree though a period of more than six years has already elapsed.