LAKSHMANA AIYENGAR Vs. NARAYANA AIYENGAR

JUDGEMENT

(1.) Defendants Nos. 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 defendants Nos. 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 personal decree against defendants Nos. 1 and 2 and also against the third 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, a decree was drawn up making third defendant also personally liable.

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

(3.) Warrant to arrest third defendant was issued and third 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 Secs.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 an amendment of decree but should have applied for a review of the judgment.