Shyama Kant Lal vs Ram Lal and Another

Harries, C.J.—These are two civil revisions preferred by the decree-holder and judgment-debtors praying for revision of an order of the learned Subordinate Judge passed in an execution matter.

To appreciate the points at issue it will be necessary shortly to set out the facts of the case. On 9th September 1929, Shyamakanta Lai and his brother Srikanta Lal executed a mortgage in favour of the decree-holder Earn Lai. The properties mortgaged were 5 annas 4 pies share in village Semaria and 6 annas 17 dams odd share in village Baralodhwe. It appears that at the date of this mortgage partition proceedings were proceeding in respect of the mahal which included the village of Semaria.

On 2nd September 1929, (that is a week before this mortgage was executed) the partition was actually approved of by the Collector, but it did not receive the approval of the Commissioner until 23rd May 1930 (that is, a considerable time after the mortgage was executed). In this Collectorate partition the mortgagors were given a separate takhta in village Basaria and their interest in village Semaria became negligible.

On 27th April 1935, the decree-holder brought a suit to enforce his mortgage by sale of the shares in these two villages. On 23rd December 1936, he obtained a preliminary decree which was made final on 23rd July 1937. On 23rd August 1937, proceedings were taken to sell the mortgaged properties, and on 18th December 1937, the two properties were sold, the 5 annas 4 pies share in Semaria being sold for RS. 2000 and the share in Baralodhwe for Rs. 6500, the purchaser in each case being the decree-holder.

On 11th April 1939, the decree-holder took delivery of possession through Court. He, however, sought to take possession of the mortgagor''s property in Basaria and of a share not in village Baralodhwe but in mahal Baralodhwe. He was resisted and eventually the decree-holder applied to the Court for amendment of the description of the mortgaged properties in the preliminary and final decrees in the suit and in all the consequential papers of the execution proceedings, that is in the execution petition, sale proclamation and sale certificate.

The learned Subordinate Judge who heard this application for amendment allowed it in the case of Semaria property and permitted the Basaria property to be substituted in place of the share of Semaria stated in the documents throughout the proceedings. With regard to Baralodhwe, however, the learned Subordinate Judge held that the dispute related not to a misdescription of property but rather to the identity of the property actually mortgaged.

In his view amendment was not the proper procedure with regard to Baralodhwe, and he refused that part of the application. The judgment-debtors being dissatisfied with the order relating to amendment and substituting the Basaria property for the share in Semaria have preferred civil Revision No. 233 of 1940, whereas the decree-holder being dissatisfied with the order refusing to allow an amendment with regard to the Baralodhwe property has preferred civil Revision No. 372 of 1940.

It will be convenient in the first place to deal with civil Revision No. 233 of 1940. The judgment-debtors argued in the Court below that this was not a case where the mortgage preceded the partition but on the contrary it was a case where the partition preceded the mortgage. However, it is clear from the facts that the mortgage was entered into before this partition was finally concluded and approved of by the Commissioner, and it has not been argued before us that the Court below was wrong in treating the partition as taking place after the mortgage. By the partition the mortgagors lost all the property of any value in Semaria but were given a separate takhta in Basaria. It appears that the mortgagors owned a 5 annas 4 pies share in both Semaria and Basaria and they received a separate takhta in Basaria representing their previous shares in both the villages. There can be no doubt that on the principle of substituted security the mortgagees could have proceeded against such part of the property allotted to the mortgagors in Basaria as represented their original share in Semaria which had been mortgaged by the mortgage of 9th September 1929.

However, the mortgagees, for reasons best known to themselves, took no steps when they instituted their suit on 27th April 1935, to proceed against the substituted security. The suit prayed for sale not of the substituted security but of the original security, namely 5 annas 4 pies share in village Semaria. The preliminary and final decrees were for the sale of that share in Semaria and such was the share mentioned in the execution petition, the sale proclamation and the sale certificate. After the whole proceedings were over and difficulties arose as to obtaining possession of the substituted security, this application for amendment was preferred.

The learned Subordinate Judge allowed the amendment, feeling that he was bound by a decision of the Privy Council in Muhammad Afzl Khan v. Abul Rahaman AIR 1932 P.C. 235. In my view that decision of their Lordships does not warrant the various amendments by the learned Subordinate Judge in this case. Their Lordships lay down that where a partition has followed a mortgage and other properties are allotted to the mortgagor in lieu of the mortgaged property then the mortgagee can proceed against the substituted security.

The difficulty in this case is that the mortgagee did not proceed against the substituted security but ignored the fact of partition and proceeded against the property originally mortgaged. There can be no doubt that he could have brought for sale such part of the property in Basaria as represented the property originally mortgaged, and that being so the learned Subordinate Judge was right in my judgment in allowing an amendment of the plaint, the preliminary decree and the final decree, but no further amendment, in my view, could be justifiably made. It must be remembered that if an amendment is made in the execution petition, sale proclamation and sale certificate, the result will be that property will have been bought and sold which has never been even put up for sale. If a part of the Basaria property be sub-stituted for the share in Semaria in the sale certificate, it will have the effect of a purchase by the decree-holder of property which has in fact never been offered for sale. That being so, it is clear that no amendment can be made in any of the relevant documents and proceedings following the final decree.

The question now arises what amendment should be made in the plaint, preliminary and final decree. The present takhta in Basaria given to the mortgagors by the partition represents not only their previous share in Semaria but also their share in Basaria. That being so, the whole of the takhta given in the partition cannot be treated as the substituted security. The learned Judge, after making a calculation based entirely upon the partition papers and valuations, has come to the conclusion that 6 annas 8 pies share of the Bararia takhta represents the old Semaria share which was the subject of the mortgage: in other words, the substituted security is now 6 annas 8 pies share in the takhta given to the mortgagors in Basaria on partition.

Mr. Khurshaid Husnain on behalf of the judgment-debtors has urged that the method adopted by the learned Judge of ascertaining what precisely is the substituted security is not the true one. There is nothing in the judgment to suggest that the parties were given an opportunity of urging their respective points of view as to how the extent of the substituted security should be ascertained. The partition papers and the valuation of the properties made in the partition proceedings are clearly of the utmost importance in the case; but, in my view, it would be advisable that before a finding is recorded as to what the substituted security is, the parties should be given an opportunity of placing their contentions before the Court and any evidence which they may seek to adduce and which the Court may consider to be properly admissible. After such inquiry the Court should come to the conclusion as to what is the substituted security, and such should be inserted in all the relevant documents up to and including the final decree in place of the share in Semaria which was the property originally mortgaged.

After such amendment is made fresh steps will have to be taken in bringing this property in Basaria to sale. It is needless to say that in view of the observations which I have made that the sale which has already taken place is in no sense a sale of the mortgaged property and cannot possibly affect the mortgagor''s interest in the takhta granted to them in Basaria. Fresh proceedings will have to be taken to bring the substituted security to sale after amendment has been made.

The decree-holder preferred civil Revision No. 372 of 1940 seeking revision of that part of the order which refused to allow any amendment with regard to Baralodhwe property. In my judgment the learned Subordinate Judge was right in refusing to make any amendment with regard to this property. The mortgaged property was certainly stated to be village Baralodhwe; but it was contended by the decree-holder that there was no such village and that the mortgaged property was in fact the mahal Baralodhwe. Certain documents were adduced by the parties to support their respective cases, and eventually the learned Judge came to the conclusion that this was not a case of misdescription merely but involved a question of the identity of the property mortgaged. That being so, proceedings to amend the relevant documents in the case did not appear to him to be appropriate.

In my view a question involving the identity of the property mortgaged cannot be dealt with on an application to amend. There is here a serious dispute as to what was the subject-matter of the mortgage. The mortgagors contend that it was a share in village Baralodhwe, whereas the mortgagees contend that it was a share in a mahal known as Baralodhwe. It appears to me that this dispute can never be decided by an application such as that preferred by the decree-holder, and in my view the lower Court was right in rejecting the application to amend.

The result, therefore, is that civil Revision No. 872 of 1910 preferred by the decree-holder fails in its entirety. Civil Revision No. 233 of 1940 preferred by the judgment-debtors is allowed in part and so much of the order of the lower Court relating to amendment of the execution petition, proclamation of sale and sale certificate is set aside. The judgment-debtors are entitled to their costs in Civil Revision No. 372 of 1940, whereas I would make no order as to costs in civil Revision No. 233 of 1940. I would assess the hearing fee in civil Revision No. 372 of 1940 at three gold mohurs.

Fazl Ali, J.

I agree.