Sh. Sunder lal and panna lal vs Sh. Sheo parsad and others

Swatanter Kumar, J.—I have heard the learned Counsel for the parties.

This revision is directed against the order dated 20.8.1982, vide which learned Sub Judge 1st Class, Jagadhri, dismissing the application filed by the applicants, present Petitioners, under Order 47, Rule 1 read with Section 152 of Code of Civil Procedure.

This application has been filed by Sunder Lal-mortgagor against mortgagee in relation to the money recoverable from the mortgaged property decreed on the ground of mesne profit. Suit from possession by way of redemption was instituted by the said mortgagor against the mortgagee being suit No. 450/1964. This suit was decreed by the learned trial court while granting the following relief vide its judgment and decree dated 26.2.1972:

Because the Plaintiffs are admittedly the successors in interest of the original mortgagor Baldev Dass and which has been admitted by the Defendants also, a preliminary decree for redemption of the mortgage on payment of Rs. 5000/- is passed in favour of the Plaintiffs against the Defendant No. 1 to 7. The payment of the mortgage money be paid by 26.8.1972. If the mortgage money is not deposited by mortgagor for payment to the mortgagee then the mortgagees are entitled to realize their amount of mortgage by getting sale made of the mortgage property.

Because the mortgage property was under the tenancy of Mukandi Lal who was a Manager of Joint Hindu Family firm at the time of the mortgage in the year 1925 as written in mortgage deed Ex. D.1 and similarly the Defendant No. 7 is a tenant over the suit property at present and there is nothing on the file that the mortgagees did not act like a wise and prudent man to manage the property. For the mortgage property is having the same encumbrance now, therefore, the mortgagors are entitled to symbolical possession of the property as Defendant No. 7 cannot be ejected except under the provisions of East Punjab Urban Rent Restriction Act, 1749. The preliminary decree is accordingly, passed with costs.

Announced in open Court." It must be noticed that under issue No. 7 a definite dispute was raised and in fact it was admitted by the parties that the mortgage money was Rs. 5,000/- and also that they were not entitled to any other compensation. This preliminary decree dated 26.2.1972 was subject matter of a prolonged litigation before the same court and the learned trial court passed final decree on 29.9.1980. In terms of the preliminary decree, in the final decree learned trial court held that the mortgagor was entitled to mesne profit from the date of decree and not from the date of institution of the suit, as claimed in the application.

It is conceded before me that the mortgagor has not assailed the preliminary decree and even the final decree was admittedly not challenged before the court of competent jurisdiction. The applicants, in order to over reach the default on their part, filed application for review praying that they were entitled to mesne profit from the date of institution of the suit and there was clerical error in the final decree and amount mentioned therein should, accordingly, be corrected. This application was dismissed by the learned trial court vide its order dated 20.8.1982. The reason given by the learned court is that there was no error, typographical or otherwise, but it was a substantive question which had to be decided by the court which passed a decree and not by the executing court. It is a settled principle of law the executing court cannot go behind the decree and must implement the decree, as passed by the court of competent jurisdiction.

In the present case, final decree as well as preliminary decree attained finality. In fact, in the present case, the Petitioners wanted to get the decree altered by the Court which was neither permissible nor would be proper.

I see no error of jurisdiction in the impugned order. The revision petition is dismissed with no order as to costs.