RAMASAN RAI Vs. RAGHUNATH SAHU

JUDGEMENT

(1.) This is an application in revision against an order amending a sale certificate. The sale certificate before the amendment showed that one of the lots sold consisted of usufructuary mortgage right under a document of 1884. The learned Subordinate Judge has ordered that the sale be amended by adding a reference to a later usufructuary mortgage-bond of the year 1915. Now, it has been held by this Court in Ramsankar Bandopadhaya V/s. Khudiram Dutt A.I.R. 1942 Pat. 828 that when questions involved are of contentious nature, Section 152, Civil P.C., cannot be invoked to justify an amendment. That case also was one relating to a dispute regarding the description of a property covered by an execution sale, and I cannot agree with the view of the learned Subordinate Judge in the present case that no contentious matters are involved. It may have appeared to him clear that the merits of the dispute lay on one side. That is not the same thing as saying that the matters were not contentious.

(2.) Clearly in the present instance a usufructuary mortgage right of the value of about Rs. 1000 depends on the answer to the question whether the right covered by the usufructuary mortgage bond of 1915 was put up for sale and sold. I do not desire to express any opinion on the merits, but I am quite satisfied that this is not a case in which Section 152, Civil P.C., can be invoked in the absence of any authoritative determination of the rights of the parties.

(3.) In the circumstances, the order of the learned Subordinate Judge for amendment of the sale certificate is set aside. The respondent-applicant will, however, be allowed three months from today in which to file a suit to establish his right, and meanwhile the application for amendment of the sale certificate will remain pending. If the applicant respondent notifies to the original "Court that such a suit has been filed within four months from today, then the application will remain pending until the disposal of that suit. Otherwise the application will stand dismissed on the expiry of the four months from today. The petitioner before me is allowed the costs of this Court. Hearing fee: one gold mohur.