AZIZ ULLAH KHAN Vs. COURT OF WARDS

JUDGEMENT

(1.) This is an application in revision against an order passed by the District Judge to the effect that a mortgage decree and certain connected documents be amended. The applicant before us mortgaged certain zamindari property in a village called "Nawadiya Zamania Nagla," but by an accidental slip the property was described in the mortgage deed as being situated in the village "Nagla Zamania Nawadiya." The words are the same, but the order has been inverted by an accidental slip. It is admitted that there is no village bearing the latter name or at least that there is no village of that name in which the mortgagor has or ever had any interest. There was never any doubt as to the identity of the mortgaged property.

(2.) The mortgagee brought a suit upon the basis of the mortgage, obtained a preliminary decree, which was upheld by the appellate Court, obtained a final decree and brought the property to sale. The mortgagee himself purchased the property at the auction sale, obtained a sale certificate and obtained formal delivery of possession. Throughout all these proceedings the property was described erroneously as being situated in "Nagla Zamania Nawadiya" in accordance with the wording of the mortgage deed. It was not until the mortgagee, as auction purchaser applied to the Revenue Court to have his name mutated as purchaser of the share that the mistake came to light. The Revenue Court refused the application for mutation on the ground that the auction purchaser, according to the sale certificate, had not purchased the property in Nawadiya Zamania Nagla.

(3.) The mortgagee then applied to the trial Judge asking him under Section 152 to amend the decree. The Subordinate Judge rejected the application on the ground that his decree had become merged in that of the District Judge and he had no jurisdiction to amend the decree. The mortgagee then applied to the District Judge for amendment of the decree and the connected proceedings, but the District Judge also held that he had no jurisdiction to decide the application as the applicant should have appealed from the order of the Subordinate Judge. The mortgagee then went up to the High Court in revision. A Bench of this Court decided that the District Judge had jurisdiction to hear and decide the application and returned the application to him for disposal. The District Judge having taken evidence to satisfy himself that there was, in fact, a misdescription of the property, granted the application for amendment.