Lakho Bibi vs Salamat Ali

John Edge, C.J. and Burkitt, J.—This is an application in revision u/s 622 of the Code of Civil Procedure. It arises out of an order made by the Subordinate Judge of Allahabad on an application presented u/s 206 of the Code. The facts are these. The respondent here, Syed Salamat Ali, was the holder of a second mortgage of mauza Sondhia. The appellant here, Musaramat Lakho Bibi, was the holder of a third mortgage over mauzas Sondhia, Khaura and Gaura. Her mortgage money had been applied to the discharge of the first mortgage in which the three mauzas had been mortgaged. Salamat Ali brought a suit u/s 88 of the Transfer of Property Act for sale of mauza Sondhia in discharge of his mortgage. That was the only relief which he asked. Musammat Lakho Bibi had pleaded her third mortgage and the discharge of the first mortgage as a shield to protect mauza Sondhia being brought to sale until the money paid by her to discharge the first mortgage had been repaid to her. The Subordinate Judge found that Lakho Bibi was entitled to avail herself of the discharge of the first mortgage as a shield, and in his judgment he held that Salamat Ali was bound to pay Lakho Bibi E8. 2,050, being the amount paid to discharge the first mortgage, and he also held that Salamat Ali having made that payment, if Lakho Bibi did not redeem him, Salamat Ali was entitled to his decree for sale. The decree as drawn up was, in our opinion, in accordance with the judgment. It decreed that Salamat Ali should pay Rs. 2,050 to Lakho Bibi, that in default of redemption by Lakho Bibi at a specified time mauza Sondhia should be sold. Here we may observe that in our opinion the judgment and decree were incorrect. On the finding that Lakho Bibi was entitled to avail herself of the discharge of the first mortgage as a shield in this suit, the Subordinate Judge ought to have ascertained what proportionate part of the Rs. 2,050 should be attributed to the discharge of the first mortgage on mauza Sondhia as far as it was concerned, and he should have given the plaintiff, of course subject to redemption by Lakho Bibi, a decree for sale of mauza Sondhia on payment of that proportionate amount to Lakho Bibi. No party appealed; but after the decree had been drawn up and signed Salamat Ali applied u/s 206 of the Code to have the decree amended by making it a decree for sale of not only mauza Sondhia, but also of mauzas Khaura and Gaura. The Subordinate Judge granted that application and altered the decree in accordance with it. It is with reference to that order that this applictaion for revision has been made. Now the decree as first made was, in our opinion, strictly in accordance with the judgment. The judgment was incorrect in the particulars to which we have referred, but still the decree was a decree in accordance with the judgment, whether that judgment was right or wrong in law. The decree as altered on the application u/s 206 is not a decree in accordance with the judgment. The judgment did not decide that mauzas Khaura and Gaura should be sold: Salamat Ali had not aBked in his plaint that they should be sold. In law he was not entitled to a decree for sale of those mauzas. He was not a mortgagee of those mauzas, and did not become a mortgagee of those mauzas by payment of the amount paid by Musammat Lakho Bibi in discharge of the first mortgage. If the result has been that he has paid more than he ought to have been compelled to pay in order to obtain the sale of mauza Sondhia, that result could have been avoided; it was due to his own laches in not appealing. He has brought that result upon himself. The law cannot be altered to relieve a man from the effect of his own laches. The application u/s 206 of the CPC should have been dismissed and not granted. u/s 622 of the Code we make the following order. We allow this application with costs. We set aside the order passed on the application u/s 206 of the Code with costs. We dismiss that application, and we restore the decree as originally drawn up and signed.