KOVVURU LAKSHMIPATHIRAJU Vs. JAGANI VENKATASWAMI

JUDGEMENT

(1.) The suit has been dismissed as barred under Art. 11 -A of Schedule I of the Indian Limitation Act as having been brought more than one year after an order was passed under Rule 101 of Order 21, Civil Procedure Code. The appellants are the purchasers of one-fourth right in certain properties which were mortgaged under P-I.K. Appala Narasimharaju and six others executed the mortgage, Ex. P-I, on 26 October, 1915. The mortgaged property consisted of about 24 acres which were held jointly by the several mortgagors. One of the mortgagors, K. Appala Narasimharaju, executed a sale deed of a fourth of the property under Ex. P-2 dated 18 February, 1918, for a stated consideration of Rs. 300, which was directed to be paid to the mortgagee under Ex. P-I. The property that was sold was 6 acres being an undivided one-fourth of a property which is described to have been held jointly by the vendors and others and to be situated within the boundaries given in paragraph 3 of Ex. P-2. The mortgagee filed O.S. No. 769 of 1925 to recover the amount due under Ex. P-I. But unfortunately he did not implead the subsequent purchaser under Ex. P-2. A final decree was passed in that suit and the properties were brought to sale and purchased by the decree- holders. They obtained possession of the properties purchased by them and thereupon the plaintiffs in this action filed E.A. No. 170 of 1938 asking for re-delivery of the property which had been purchased by them. This was refused by an order Ex. D-5, dated 20 October, 1938. The present suit was filed on 8 December, 1940, for redemption of the mortgage, Ex. P-I and for delivery of the properties mentioned in the schedule attached to the plaint on the ground that those properties had been allotted as and for the one-fourth share which he purchased, or, in the alternative, for one-fourth share of the lands that were mortgaged under Ex. P-I. No doubt, there is no definite prayer that the one-fourth of the entire mortgaged properties should be given to him after partition, but that is obviously the sense and intendment of the plaint. This was sought to be made clear by an application for amendment. But, curiously, though the application was made three months before the suit came on for trial, it was dismissed and that has led to some complication. The application was dismissed on the ground that the nature of the suit will be changed. But it is difficult to see how it is. In paragraph 8, Clause (b) the plaintiff asked in the alternative that he might be given one-fourth share of the mortgaged properties. The amendment was that it might be given to him after partition. This is merely clarifying the position which had already been put forward in the plaint and it was obviously a case for allowing the amendment. Too technical a view, I regret to find, is being taken by the subordinate Courts of late in discharging their duties as to amendments. All amendments which do not throw an unnecessary and unreasonable burden on the other side should be allowed and only those amendments which cannot be compensated by an award of costs--?, they alone--should be refused. Here is a case in which the plaint itself had obviously asked for a delivery of the one-fourth share of the entire properties and that was obviously meant to be after partition; and when the matter was sought to be put more clearly, all kinds of technical pleas were evidently advanced by the defendant; and as I said before, it is regrettable to find that they were upheld by the District Munsiff. I allow the formal amendment. This, however, does not solve the difficulty raised in the suit. The main defence was that the suit is barred by limitation as it was filed more than one year after date of the order dismissing E.A. No. 170 of 1938. This objection has been upheld; but I am unable to agree with the decision of the lower Courts. The bar under Rule 103, of Order 21, runs in these terms: Any party not being a judgment-debtor against whom an order is made under Rule 98, Rule 99, or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property, but subject to the result of such suit (if any), the order shall be conclusive.

(2.) Rule 63 of the same order runs in these terms: Where a claim or an objection is preferred, the party against whom an order is made may institute a suit to establish the right which he claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive.

(3.) Leaving out the other portion of the two rules which are not material for our purpose, the wording in so far as it is material may be set out thus: