Baiju Rai and Others vs Hisab Rai and Others

Sen, J.—The petitioners are decree-holders in a mortgage-suit against the opposite party. The property mortgaged under the deed is a certain estate called Fatehpur Gouripur, Touzi No. 187. According to the plaintiffs it consists of two asli villages, Fatehpur and Gouripur, and three dakhli villages, namely, Gouripur Chour, arazi Patehpur and Karanpur. The petitioners, in the schedule annexed to their plaint, set out all the five villages as comprised within Touzi No. 187. The learned Subordinate Judge passed a decree in the mortgage suit in which the dakhli villages were specifically mentioned by name. There was an application by the opposite party for the amendment of the decree on the ground that the decree, as it stood, was not in conformity with the judgment. Thereupon the learned Subordinate Judge passed an order which is the subject-matter of the present application. The order is dated 28th August 1926. By that order the learned Subordinate Judge varied the decree, deleting the names of villages set out in the original decree, and thereby, as he thought, bringing it into conformity with the judgment.

The petitioners before this Court contend that the learned Subordinate Judge acted without jurisdiction in making this order of amendment. It is contended, however, on the other side, that, inasmuch as the original decree was really not in conformity with the judgment, it was quite proper on the part of the learned Subordinate Judge to vary it and to bring it into conformity with the judgment by this order, as he has done.

It is necessary, therefore, to inquire whether the original decree was in conformity with the judgment or not. In para. 7 of the plaint the plaintiffs had asked for a mortgage-decree in respect of half-anna pokhta share of mauza Patehpur Gouripur as per details given below.

The details referred to are to be found in the schedule annexed to the plaint which set out all the villages above mentioned. Looking at para. 13 we find that in the prayer portion of the plaint the usual mortgage-decree is asked, and in default of the payment of the amount the of the mortgage, the "sale of the property" is prayed for.

The question is what is the property which is referred to in the plaint. Now it is perfectly clear that, as the plaintiffs apprehended it the property mortgaged was Touzi No. 187 consisting of the villages set out in the plaint, and it was of that property that sale was asked for in the plaint. There was no objection taken in the written statement to this description of the property. Consequently there was no issue raised and the matter was not gone into in the trial.

The learned Subordinate Judge proceeded to judgment. Dealing with issue 9 he observed:

the suits be all throe decreed with costs...and that in case of default the mortgaged property be sold for satisfaction of the decree.

Now, as I understand it, this judgment gave all the reliefs that the plaintiffs had asked for in their plaint in their entirety. That being so, the decree, as it originally stood, must be deemed to have been in conformity with this judgment, and in view of that fact it cannot be said that he was acting within his jurisdiction in amending the decree as he has done subsequently.

The learned advocate for the opposite party has contended that no plea in the written statement could be taken on account of the fact that the copy of the plaint that was served upon the opposite party, defendants in the case, contained no schedule at all, and, therefore, they had no notice of the fact that several villages were being described in the plaint as comprised within the touzi.

I do not think I am in a position to go into that question at this stage ; but it should be noted that the opposite party concedes that the villages mentioned as the dakhli villages are indeed the dakhli villages of Touzi No. 187.

That being so, I certainly think that there is no point in the objection which is now being set up by the opposite party.

The applications are, therefore, granted. The order amending the decree is vacated and the decree, as originally framed, is to stand. Costs allowed to the applicants.