The petitioner field O.S.NO.39 of 1999 in the court of I Additional Senior Civil Judge, at Kakinada, against the 1st respondent, for recovery of money. He has also prayed that a charge be created on an item of immovable property. The 2nd respondent got itself impleaded in the suit, as defendant No.2, stating that the item mentioned in the suit schedule was hypothecated to it. The trial court decreed the suit. A decree was drawn in terms of Order XXXIV C.P.C., as though it is a suit for mortgage.

The 2nd respondent field I.A.NO. 1456 of 2003, under Sections 151 and 153 of C.P.C., with a prayer to amend the decree. It was urged that the suit was the one, for recovery of money-simplicitor, and the decree was drawn, as though it was a suit for mortgage. The petitioner opposed the application. The trial court allowed the I.A., through order dated 19/12/2003. Hence, this revision.

Sri V.L.G.K. Murthy, learned counsel for the petitioner, submits that the petitioner claimed a specific relief in the suit, not only for a decree for recovery of money, but also to create charge over an item of property, mentioned in the schedule, and that the decree was drawn in accordance with law. He contends that the 2nd respondent was very much a party to the suit, and there was absolutely no basis for it, to seek modification of the decree. He contends that rule 15 of order 34 C.P.C., makes the form of a mortgage decree, applicable even to cases of charge also, and in that view of the matter, the order under revision cannot be sustained.

Sri M. Narender Reddy, learned counsel for the contesting party, i.e. 2nd respondent, submits that the suit field by the petitioner herein was the one, for recovery of money, and though a prayer was made for creation of the charge, the fact of the case and relevant provision of law, do not permit of such a relief. He contends that no charge as such was created, vis-à-vis the property, as provided for under section 100 of the transfer of property Act, 1882 (for short ‘the Act’). Learned counsel submits that the adoption of form of mortgage decree to cases of charge would be possible, only where a charge is created, vis-à-vis immovable property, in accordance with law, and not otherwise.

The petitioner field O.S.NO. 39 of 1999 against the 1st respondent, with the following prayer:

“The plaintiff therefore prays that the Hon’ble court may be pleased to pass a decree for recovery of the suit amount by awarding subsequent interest at 18% per annum yearly compound with a charge on the plaint schedule property and award costs and such other relief as the Hon’ble courts deems fit and proper in the circumstances of the case”.

The manner in which he is said to have created the charge over the schedule property, which comprised of items of movable property, viz., furniture, electrical fittings, stationary articles, account books, and printed books, for sale; was mentioned in para 4 of the plaint. It was pleaded that the 1st respondent borrowed a sum of Rs.20,000/- on 02/12/1994, and on the same day, he has executed a “continuous mortgage/hypothecation bond”. It is also important to note that the hypothecation was said to be continuous, and not specific to any transaction. In the words of the petitioner;

“…The defendant used to borrow the amounts and discharge the same and he is in the habit of taking return of the promissory notes executed by him and since the mortgage/hypothecation bond is continuous and as he is in need of amount, he used to leave the same with the plaintiff”.

The suit was decreed on 19/12/2003. The trial court prepared a decree for moneysimplicitor. However, a preliminary decree, which is prepared in the case of mortgage suits, was appended to it. The 2nd respondent felt aggrieved by the form of decree, and not by the result of the suit. Therefore, it field I.A.NO. 1456 of 2003 under sections 151 and 153 of C.P.C. the application was allowed. The correctness thereof is challenged in the revision.