PUNAMCHAND MAHOSHRI Vs. GADIRAM KUNBI

JUDGEMENT

(1.) THIS is an application for review of our judgment in First Appeal No. 108 of 1930 on two grounds: (1) that there is an error of fact apparent on the face of the record; and (2) that apposite law has not been applied.

(2.) IT is pointed out that this Court decided the case on the assumption that the two mortgages were of different dates, while they were of the same date. It is true that there has been a mistake in the first sentence of para 6 of our judgment in stating that Sheoratan held two mortgages of different dates. In view of the clear mention in para. 2 of two mortgages having been executed on 23rd June 1921, it is apparent that the mistake is only of a clerical nature. Moreover it does not affect the actual decision of the case as is evident from para. 7 of our judgment.

(3.) IT is next urged that the proper course was to make an order discharging Gadiram from the suit or to remit the case to the lower Court for apportioning their respective rights in the property as if they were co-owners. We are of opinion that the dismissal of the suit for foreclosure as against Gadiram has the same effect as that of discharge, since the lower Court's decree, which we have affirmed, covers the property purchased by Gadiram. The decree of dismissal will not preclude the applicant from suing on any other cause of action on the principle stated in Laxminarayan v. Vithoba AIR 1919 Nag 57. There can be no apportionment of rights (which means virtually determining their shares with a view to eventual partition of the property) so long as Gadiram's position is that of a mortgagee. Under the decree of this Court it is open to the applicant after obtaining the final decree of foreclosure, to sue for redemption treating Gadiram as a mortgagee in possession. There is thus no failure to apply the apposite law. The application is dismissed with coats. Pleader's fees Rs. 50.