- (1.) The revisionists are defendants in suit No. 328 of 1989, filed by Allahabad Bank, Branch Mussorie, district Dehradun, the respondent.
(2.) The facts of the case, in brief, are that in respect of Agricultural Loan, National Bank for Agricultural and Rural Development (Nabard) had recommended to the Bank to advance a sum of Rs. 41.26 lacs to the Revisionist but instead of providing loan in terms of Nabard scheme a total sum of Rs. 24.08 lacs only had been advanced. That as the plaintiff failed to advance the balance of Rs. 19.17 lacs, the defendants concerned suffered a serious loss and damage and for that the defendants filed a suit for damages before the Calcutta High Court praying for a decree of Rs. 2,36,11000/- and that suit No. 455 of 1989 is pending before the Hon'ble High Court at Calcutta. As a counter blast the plaintiff filed a suit before the Civil Judge, Mussoorie, at Dehradun and prayed for the recovery of Rs. 39,98,744.65. In that suit the plaintiff-respondent specified that defendant No. 1 hypothecated in favour of the plaintiff alt the future product goods and movable property including all plants, Engines, Machineries etc., through a letter of hypothecation dtd. 15-11-84. That defendants Nos. 2 to 4 also stood as guarantors of defendant No. 1 with a liability being joint and several, and created an equitable mortgage by deposit of title deeds in respect of the property through the mortgage agreement dated 15-11-84, hence the suit was filed as a suit on the basis of mortgage by deposit of title deeds. Though the suit was on the basis of mortgage but still in the relief claimed there was no prayer for preliminary and final decree, hence the plaintiff moved an application for amendment of the plaint alleging that due to over-sight the word "preliminary" had been omitted from the relief clause and as a consequence thereof some other amendments were also to be done and it was prayed that the word "preliminary" be added before the word "decree" and subsequently 'on the defendants failure' "a final decree may kindly be passed debarring defendants 1 and 2 from all rights to redeem mortgaged property". The learned court below allowed the application in spite of objection. On being aggrieved, this revision has been preferred.
(3.) The only point pressed in this revision is that so far the amendment of addition of words "preliminary" and "final decree" was concerned, the revisionist had no objection but the plaintiff could not also claim the relief regarding debarring the defendants Nos. 1 and 2 from all rights to redeem the mortgaged property which clearly amounts to a relief, of foreclosure which could not legally be granted on the allegations made in the plaint and the nature of the suit on the basis of amort gage by deposit of title deeds and, therefore, the order of the learned court below was clearly against the provisions of law and the Civil Judge has acted illegally in the exercise of his jurisdiction while allowing that part of the amendment application.;