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1 - 4 of 4 (0.20 seconds)Shujaatmand Khan And Ors. vs Govind Behari And Ors. on 7 November, 1933
The learned Counsel has relied on the ruling in Shujaatmand Khan v. Govind Behari (1934) 21 A.I.R. All. 100. That ruling supports his contention. The learned Counsel appearing for the respondents decree, holders has relied on the case in Azizullah Khan v. Court of Wards, Shahjehanpur (1932) 19 A.I.R. All. 587. In that case it was found that the mortgagor's zamindari property was situated in a village called "Nawadiya Zamania Nagla," but the name of the village was written in the deed as "Nagla Zamania Nawadiya." It was admitted by the parties that there was no village of the name of "Nagla Zamania Nawadiya" or, at least, there was no village of that name in which the mortgagor ever had any interest. It was further found that there never had been any doubt as to the identity of the property mortgaged. In these circumstances it was held that the application of the mortgagee to amend the decree could be granted. It was held that Section 95, Evidence Act, applied and that the Court had jurisdiction to call evidence for the purpose of showing that the mortgage deed did in fact relate to the property in Nawadiya Zamania Nagla. In our opinion that is a very different matter from the one that we have before us. This is a case which in our judgment is governed by the rule laid down in Section 94, Evidence Act. If the mortgagees had in the suit filed by them for the enforcement of their mortgage asked for the sale of the entire property of the mortgagor in this mahal namely, "five shares", instead of "five pies" as given in the mortgage deed, and had made the allegations which they have now made in their application for correction, the Court could not, in view of Section 94, Evidence Act, have allowed evidence to be produced to prove their allegations. We are of opinion that the} mortgagees cannot be allowed to obtain by this application made after the passing of the decree what they could not have obtained in the suit itself.
Section 95 in The Indian Evidence Act, 1872 [Entire Act]
Gauri Shankar vs Shyam Sunder Lal And Ors. on 20 April, 1938
4. The learned Counsel appearing for the applicant has contended that the Court below has no jurisdiction to pass the order in question. We are of opinion that this contention is well founded. The point arose in the recent Full Bench case in Gauri Shankar v. Shyam Sunder Lal (1938) 25 A.I.R. All. 466. but was not decided as it was found that the case could be disposed of on another point.
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