JAYAVANT RAO NARAYAN DESHMUKH Vs. NARSING SAKHARAM DESHMUKH

JUDGEMENT

(1.) A suit was brought against one Narayanrao in the Court of the Joint Subordinate Judge at Nasik, being Civil Suit No. 225 of 1917. Narayanrao died pending the proceedings, and his son was brought on the record as his legal representative on the 16 June 1918. The suit was dismissed on the 20 June 1918. But in appeal the decree of the trial Court was reversed and a decree was passed against the son on the 16 June 1919. The proper decree of the Court would have been against the son as the legal representative of his father to the extent of any assets which might come into his hands from the estate of his father. No one, however, seems to have taken any notice of the error which had been made and even in 1920, when the Darkhast was tiled Narayanrao's son paid Rs. 10. A fresh Darkhast was taken out in 1921 asking for the personal arrest of the present petitioner who then applied for a review of the decree of the Appellate Court for the purpose of amending the decree in conformity with Section 52 of the Civil Procedure Code. The District Judge considered that there was no error apparent on the face of the decree; that it would have been an error of this description if the petitioner when brought on the record had asked the Trial Court not to pass a decree against him, and if a decree had been made, it should be made against the estate of the deceased which might come into his hands; and that no such prayer was made. It seems to me it is not an excuse for an error of this description that the party affected by the error made no application at the time. To pass a decree against the legal representative of the deceased defendant so as to make him personally liable is not, in my opinion, competent to a Court to direct. When the attention of the Court was drawn to the error, even, although it might be at a rather late stage of the proceedings, there was no reason why on that account the mistake should not be remedied. I think the Rule must be made absolute and the decree must be amended so as to direct the payment by the defendant out of the assets which may have come into his hands from the estate belonging to his deceased father. No order as to costs.