UPADHAYAYULU YEGNANARAYANA Vs. KOTTALANKA MAKAYYA

JUDGEMENT

(1.) THE decree-holder has misunderstood both his rights and remedies. THE claim was for the assessment paid by the plaintiff, which ought to have been paid by the defendants. In the plaint, the prayer is that the properties in respect of which the revenue was paid, should be held liable.

(2.) WE understand this prayer as claiming a mortgage-decree in effect. The decretal portion of the judgment gives a mortgage-decree and fixes a date within which the money should be paid. But in drafting the decree, a mistake was made by giving the decree-holder only a charge on the property. The decree-holder, instead of applying to have the decree amended, moved the Court to attach the property treating the decree in his favour as a money-decree. The District Munsif granted the prayer. In appeal, the District Judge, relying on Aubhoyessury Debee v. Gouri Sunkar Panday 22 C. 859, held that the plaintiff s only remedy was to sue again to enforce the charge. Apparently, it was not argued before him that the decree was in effect a mortgage-decree. It is conceded by the learned Vakil for the respondents before us that it is open to a Court executing the decree to construe it in the light of the plaint and the judgment. In this view, we think that it was intended to give plaintiff a decree enabling him to bring the property to sale. The proper course was to have applied to the Court which passed the decree to bring the decree into conformity with the judgment. It was argued that we should allow this amendment ourselves. Supposing that we have the power, seeing that the decree was treated by the appellant as a money-decree and also having regard to the fact that the application for sale should be preceded by an application for a decree absolute, we do not think we can comply with the request of the appellant s Vakil. WE feel no doubt that the Court of first instance will direct the amendment, which we think ought to be made in the decree. But as the plaintiff has misconceived his remedy, we must dismiss the Civil Miscellaneous Second Appeal with costs; each party will bear his costs in the two Courts below.