DAMBER SINGH Vs. CHHEDU SINGH

JUDGEMENT

(1.) A preliminary objection has been taken to the hearing of this first appeal, namely, that the appeal is not competent. The objection arises in this way: There was pending before the Subordinate Judge a suit No. 135 of 1923, brought by Chhedu Singh and others against a large number of defendants. That suit was a suit for sale on a mortgage bearing the date 18 November 1913. But the plaintiffs also claimed to be entitled to bring to sale the property of the mortgagors in satisfaction of a certain decree which had been passed in favour of a prior mortgagee named Bhola Nath. The case for the plaintiffs was that this prior decree had been satisfied by them and that they were entitled, therefore, to tack on the sum they had thus paid to their claim. That claim was recognized in the judgment which bears date 26 March 1924 and suitable directions were given in order to give the plaintiffs the satisfaction to which they were entitled by reason of their having paid off the prior claim of Bhola Nath. There was also impleaded in this suit a man named Dambar Singh who appears in the array as defendant fifth party. He is said really to be the father of the plaintiff Chhedu Singh and to be in reality one of the plaintiffs.

(2.) However that may be, it appeared at the time of the trial that this man Dambar Singh had bought at a sale in execution of a decree a certain share in mauza Kalauli, mahal Chhattar Mal, which formed portion of the mortgaged property with which we are concerned in the present suit. The sale certificate is printed at p. 45 of our record and shows that the purchase was made on 21 June 1922 and was confirmed on 2 August, 1922, and it is to be noted that in this sale certificate the amount of the share purchased by Dambar Singh is specified as well as its area. It is not disputed that the decree under which this sale took place was a decree obtained by one Lala Khannu Mal in respect of certain mortgages of the years 1904, 1905 and 1906 which were prior to the mortgage in suit (of 18th November 1913) and so provision was made to preserve the rights of the purchaser Dambar Singh, who bought under Lala Khannu Mal's decree. When the decree came to be prepared in the office it was necessary to specify with precision the property in Kalauli which was to be brought to sale and applied in satisfaction of the plaintiff's decree. It had been provided by the judgment that the share which had been mortgaged to Bhola Nath whose mortgage had been discharged by the plaintiffs, was to be saved from sale in the first instance and also that the share which had been purchased by Dambar Singh was to be preserved and that the remaining share of Kalauli was to be brought to sale and the proceeds applied directly to the satisfaction of the mortgage in suit.

(3.) At p. 28 we have a copy of the decree as prepared and it is clear that at first the share of Kalauli which was to be brought to sale was specified as follows: 5 biswas 15 biswansis 15 kachwansis 6 tanwansis and 19 nanwansis. One of the defendants in the case, a man named Madan Lal, subsequently applied for amendment of the decree. He set out certain figures and pretended that the share of mauza Kalauli, directed to be sold by the decree, was expressed wrongly. The Subordinate Judge's office made a report and in accordance with that report the Subordinate Judge amended the directions in the decree and gave an order for the sale of 7 biswas 17 biswansis odd, that is to say, a considerably larger share than was at first directed to be sold. It is contended before us that this order for amendment was erroneously made, and after having gone into the figures which are on the record, we have no doubt whatever that there has been a mistake and that the moharrir, who prepared the report upon which the order of amendment was made, fell into error.