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Kishun Kunwar vs Ganga Prasad

High Court Of Judicature at Allahabad|16 December, 1908


1. This was a suit on foot of a mortgage. The plaintiff's mortgage was dated the 18th of January, 1901. Defendant No. 1 was the executant of the mortgage. Defendant No. 2 held a prior mortgage from the same mortgagor. He also held a second mortgage from the same mortgagor and also he held a third mortgage from him. The Court of first instance decreed the suit. Defendant No. 2 alone appealed. His grounds of appeal to the lower appellate Court were that he had not had sufficient opportunity to present his case, and that he had applied to the Court of first instance to adjourn the case, which that Court refused to do. The matter having come up for trial to the lower appellate Court, judgment was delivered on the 20th of May 1908. The Court in the clearest possible way decided that defendant No. 2 had had sufficient opportunity in the Court below. The judgment goes into the entire facts of the case. It deals with all the objections of defendant No. 2. It was, however, necessary for the plaintiff before a decree could be passed in her favour that she should produce a certificate to collect debts as the heir of the original mortgagee. The concluding words of the judgment are--following the course adopted by the High Court in Abdul Karim, Khan v. Maqbul-un-nissa Begam 28 A.W.N., 113, I defer passing decree in this appeal for two months in order to give the plaintiff an opportunity of producing the certificate." This judgment is duly signed and dated, and it is impossible to read it without seeing that the Judge intended it to be a complete judgment. He merely deferred passing the decree for production of a certificate to collect debts. Ho did not even adjourn the case. Five days afterwards the Court delivered a second judgment and made an order remanding the case to the Court of first instance.
2. This judgment is inconsistent with the first judgment. According to the first judgment nothing remained to be done except to pass a decree. According to the second judgment the learned District Judge was to pass no decree at all but remanded the case to the Court of first instance. Section 202 of the Code of Civil Procedure provides that as soon as a judgment is dated and signed by the Judge in open Court it must not be altered or added to, save to correct verbal error or to supply some accidental defect not affecting a material part of the case, or on review. In view of these provisions of the Code, we think that the order of the Court below was illegal. We accordingly allow the appeal, set aside the order of the Court below, and remand the case, directing the learned District Judge to deal with the case in accordance with his judgment of the 20th May 1908. The appellant will have his costs which will in this Court include fees on the higher scale.
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Kishun Kunwar vs Ganga Prasad


High Court Of Judicature at Allahabad

16 December, 1908
  • Richards
  • Griffin