LAKSHMANA IYENGAR Vs. NARAYANA IYENGAR

JUDGEMENT

(1.) Defendants 1 and 2 mortgaged the suit properties in favour of plaintiff under a usufructuary mortgage deed, in which however no reference was made to the fact that the lands were security for a loan taken by defendant 1 and 2 from Government. The plaintiff paid off various instalments due for the Government loan and sued for the amount so paid. He asked for a personal decree against defendants 1 and 2 and also against 3 defendant who was a subsequent purchaser. Judgment was pronounced on 29 January, 1921 and was to the effect that a decree would be passed in favour of the plaintiff as prayed for in the plaint. Accordingly decree was drawn up making 3 defendant also personally liable.

(2.) It is now admitted by plaintiff that 3 defendant should not have been made personally liable.

(3.) Warrant to arrest 3 defendant was issued and 3 defendant states that he only then came, to know of the wrong direction in the decree and on 10 September, 1921, he applied in the course of the execution proceedings objecting to the execution but was told by the Court to apply for amendment of the decree. So on 20 September, 1921, he filed a petition under Section 151 and 152 of the Civil P. C. to amend the decree. On 18 January, 1922 this petition was dismissed on the ground that the petitioner should not have applied for amendment of decree but should have applied for a review of the judgment.