Interference in revision called for.

K.M. Natarajan, J.

1. This revision is directed by the third defendant against the order passed by the Third Assistant Judge, City Civil Court, Madras, dismissing the petition I.A. No. 20256 of 1985 to review the judgment in O.S. No. 4851 of 1984.

2. The facts which are necessary for the disposal of this revision can be briefly stated as follows:

The first respondent herein filed the above suit O.S. No. 4851 of 1984 on the basis of a mortgage against defendants 1 and 2 who are respondents 2 and 3 herein, son and daughter of the deceased mortgagor, O.S. Nataraja Chettiar. The revision petitioner herein was added as the third defendant to the said suit on the ground that he is holding a subsequent charge over the suit property. After contest, the Court below decreed the plaintiff's suit with costs while dismissing the counter claim by the third defendant (revision petitioner) who are permitted by the Subordinate Judge, Salem in I.A. No. 290 of 1979 in O.S. No. 599 of 1976 (later the suit was transferred to the City Civil Court) to pay the Court fee for enforcing the charge in his favour and he accordingly paid the court-fee. The lower Court dismissed the claim on the ground that it was not a charge; but was a charge-decree in favour of the third defendant and that though the acknowledgement of liability made by virtue of the endorsement Exhibit A.10 made on Exhibit A.9 document is not a forged one, but a genuine one, the claim is barred by limitation as the charge-decree was not enforced within the time and that the acknowledgment will not save limitation. The revision petitioner filed the review petition I.A. No. 20256 of 1985 to review the judgment and the learned Assistant Judge dismissed the application. Aggrieved by the same, this revision is filed.

3. The revision petitioner appeared in person and submitted that the charge created by virtue of Clause 3 of the compromise decree in O.S. No. 16 of 1953 on the file of the District Court, Salem which has been marked as Exhibit A.9 is not a charge-decree, but it is only a mere charge and as such it is to be enforced only by a separate suit. Further, the amount due under the charge cannot be realised by executing the compromise decree in O.S. No. 16 of 1953, as there is no charge-decree. Hence the counter claim made in the mortgage suit is in order since under Exhibit A.9, compromise decree no charge decree is granted in his favour his claim is not barred under Order 34, Rule 15 Clause 2, C.P.C. According to the petitioner even in the counter filed by the defendant in I.A. No. 290 of 1979 which is a petition for permission to pay court fee on the counter-claim for the charge the first defendant himself has contended that it is only a charge and that the remedy of the third defendant is only to file a separate suit for enforcing the charge. Since it is only a charge, certainly the endorsement Ex.A-10 saved the period of limitation in view of Sections 18 and 19 of the Limitation Act. Lastly it was submitted by the petitioner that the decision relied on by the court below is not applicable to the charge but only to charge decree and since it is misinterpretation of the compromise decree Ex.A 9, which is an error of fact and law apparent on the face of the record, the Court below ought to have allowed the application for review.

4. The facts involved in the revision are not in dispute. The main question to considered is whether under Clause 3 of the compromise decree in O.S. No. 16 of 1953 a charge is created over the properties or a charge-decree was passed and secondly whether the petitioner is entitled to invoke Order 47, Rule 1, C.P.C., for review of the judgment and the decree without resorting to filing an appeal against the said judgment and decree. For proper appreciation of the contentions of both the parties and the decision of the Court below as to whether it is a charge or a charge decree created in favour of the petitioner, it is worthwhile to extract the relevant Clause