Keshardeo Chamria Vs. Radha Kissen
Chamria & Ors  INSC 52 (30 October 1952)
MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN BOSE,
VIVIAN HASAN, GHULAM
CITATION: 1953 AIR 23 1953 SCR 136
CITATOR INFO :
RF 1956 SC 391 (39) R 1959 SC 492 (19)
E&D 1964 SC1336 (8) R 1971 SC2324 (7) R 1975 SC 794 (6) RF 1981 SC 707 (5)
R 1988 SC1531 (104)
Civil Procedure Code (Act V of 1908), ss.
47,115, 151-Execution proceedings-Dismissal of adjournment petition-Dismissal
of execution case also by same order without asking pleader what he has to
say-Restoration of case under inherent powers-Appeal and revision petition to
High Court from order of restoration-Maintainability of appeal-Interference by,
High Court in revision-Legality Revisional powers of High Court-Appeal from
orders made under inherent powers.
A Subordinate Judge dismissed an application
by a decree holder for adjournment of an execution case and by the same order
dismissed the execution case itself without informing the decree. holder's
pleader that the application for adjournment had been dismissed and asking him
whether be had to make any submission in 137 the matter of the execution case,
and an application for restoration of the execution case setting aside the
order of dismissal, the Subordinate Judge, finding that he had committed an
error which had resulted in denial of justice restored the execution case in
the exercise of the inherent powers of the court under s. 151, Civil Procedure
Code. The judgment-debtor preferred an appeal and an application, for revision
to the High Court against this order. The High Court held that the appeal was
not maintainable but set aside the order of the Subordinate Judge in the
exercise of its revisional powers and remanded the case to the Subordinate
Judge for fresh disposal after considering whether it would have been possible
for the decree-holder to take any further steps in connection with the
execution application after the dismissal of the application for adjournment:
Held, (i) that the order of the Subordinate
Judge dismissing the execution case without giving an opportunity to the decree
holder's pleader to state what he had to say the case itself was bad and was
rightly set aside by the court its own initiative in exercise of its inherent
(ii)The High Court had no jurisdiction in the
exercise of its appellate powers to reverse the order of restoration as that
order by itself did not amount to a final determination of any question
relating to execution, discharge or satisfaction of a decree within the meaning
of s. -47, Criminal Procedure Code, and an order made under s. 151, Criminal
Procedure Code, simpliciter is not an appealable order.
Akshia Pillai v. Govindarajulu Chetty (A.I.R.
1924 Mad. 778), Govinda Padayachi v. Velu Murugiah Chettiar (A.I.R. 1933 Mad.
399) and Noor Mohammad v. Sulaiman Khan (A.I.R. 1943 Oudh 35) distinguished.
(iii)As the order of the Subordinate Judge
was one that he had jurisdiction to-make, and as he had, in making that order, neither
acted in excess of his jurisdiction or with material irregularity nor committed
any breach of procedure, the High Court acted in excess of its revisional
jurisdiction under s. 115, Civil Procedure Code, and the order of remand and
all proceedings taken subsequent to that order were illegal.
Section 115, Civil Procedure Code, applies to
matters of jurisdiction alone, the irregular exercise or non-exercise of it or
the illegal assumption of it, and if a subordinate court had jurisdiction to
make the order it has made and has not acted in breach of any provision of law
or committed any error of procedure which is material and may have affected the
ultimate decision, the High Court has no power to interfere, however profoundly
it may differ from the conclusions of that court questions of fact or law.
Rajah Amir Hassan Khan v. Sheo Baksh Singh
(1883-83) 11 I.A. 237, Bala Krishna Udayar v. Vasudeva Aiyar (1917) 44 IA. 261,
Venkatagiri Ayyangar v. Hindu Religious Endowments Board 138 1949) 76 I.A. 67,
Joy Chand Lal Babu v. Kamalaksha Chowdhury 1949)76 I.A.131 and Narayan Sonaji
v. Sheshrao Vithoba (I.L.R. 1948] Nag. 16) referred to.
Mohunt Bhagwan Ramanuj Das v. Khettar Moni
Dassi (1905) C.W.N. 617 and Gulab Chand Bargur v. Kabiruddin Ahmed (1931) 58
Cal. 111, dissented from.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 12 and 13 of 1951.
Appeals from the Judgment and Decree dated
the 17th/21st February, 1947, of the High Court of Judicature at Calcutta
(Mukherjea and Biswas JJ.) in Appeal from Original Order No. 62 of 1946 with
cross-objection and Civil Revision Case No. 657 of 1946 arising out of Judgment
and Order dated the 13th March, 1946, of the Court of the Subordinate Judge,
Howrah, in Title Execution Case No. 68 of 1936.
M. C. Setalvad (Attorney-General for India)
and Purushottam Chatterjee (S. N. Mukherjee, with them) for the appellant in
Civil Appeal No. 12 of 1951 and respondent in Civil Appeal No. 13 of 1951.
C. K. Daphtary (Solicitor-General for India)
and N. C. Chatterjee (C. N. Laik and A. C. Mukherjea, with them) for the
respondents in Civil Appeal No. 12 of 1951 and appellants in Civil Appeal No.
13 of 1951.
1952. October 30. The judgment of the Court
was delivered by MAHAJAN J.-These are two cross-appeals from the decision of
the High Court at Calcutta in its appellate jurisdiction dated 17th February,
1947, modifying the order of the Subordinate Judge of Howrah in Title Execution
Case No. 68 of 1936.
The litigation culminating in these appeals
comnmenced about thirty years ago. In the year 1923, one Durga Prasad Chamria
instituted a suit against the respondents, Radha Kissen Chamria, Motilal
Chamria and their mother Anardevi Sethan (since deceased) for specific
performance of an agreement, 139 for sale of an immoveable property in Howrah
claiming a sum of Rs. 11,03,063-8-3 and other reliefs. The suit, was eventually
decreed compromise the 19th April, 1926.
Under the compromise decree the plaintiff
became entitled to a sum of Rs. 8,61,000 from the respondents with interest at
61 per cent. with yearly rests from the date fixed for payment till
realization. Part of the decretal sum was payable the execution of the solenama
and the rest by installments within eighteen months of that date.
Within fifteen months from the date of the
decree a sum of Rs. 10,00,987-15-6 is said to have been paid towards
satisfaction of it. No steps were taken either by the judgment-debtors or the
decre-holder regarding certification of most of those payments within the time
prescribed by law.
The judgment-debtors after the expiry of a
long time made an application for certification but the decree-holder
vehemently resisted it and declined to' admit the payments.
The result was that the court only recorded
the payment of the last three instalments which had been made within ninety
days before the application and the judgmentdebtors had to commence a regular
suit against the decree-holder for recovery of the amounts paid, and not
admitted in the execution proceedings. In the year 1929 a decree was passed in favour
of the judgment-debtors for the amount paid by them and not certified in the
execution. In the meantime the decree-holder had realized further amounts in
execution of the decree by taking out execution proceedings two or three
occasions. The amount for which a decree had been passed against the
decree-holder was also thereafter adjusted towards the amount duo under' the
On the 17th March, 1933, the decree was
assigned by Durga Prasad to the appellant Keshardeo Chamria. The execution proceedings
out of which these appeals arise were started by the assignee the 10th October,
1936, for the realization of Rs. 4,20,693-8-9 and interest and costs.
This execution had a chequered career. To
begin with, the judgment-debtors raised 140 an objection that the assignee
being a mere benamidar of Durga Prasad Chamria had no locus standi to take out
execution. This dispute eventually ended in favour of the assignee after about
five years' fight and it was held that the assignment was bonafide and Keshardeo
was not a benamidar of the decree-holder.
On the 17th July, 1942, Keshardeo made an
application for attachment of various new properties of the judgment-debtors
and for their arrest. Another set of objections was filed against this
application by Radha Kissen Chamria. He disputed the correctness of the
decretal amount, and contended that a certain payment of Rs. 1,60,000 should be
recorded and certified as made -the 28th May, 1934, and not the date the sum
was actually paid to the decreeholer. This objection was decided by the
Subordinate Judge the 11th September, 1942, and it was held that the
judgment-debtors were liable to pay interest the sum of Rs. 1,60,000 up to the
12th October, 1936, and not up to the 4th July, 1941, 'as claimed by the assignee.
appeal the High Court by its judgment dated the 22nd June, 1943, upheld the
decree holder's contention, and ruled that the judgment-debtors were liable to
pay interest up to the 4th July, 1941, this sum of Rs. 1,60,000. The
judgment-debtors then applied for leave to appeal to the Privy Council against
this decision and leave was granted. the 13th February, 1945, an application
wag made to withdraw the appeals, and with-' drawal was allowed by an order of
the court dated the 20th February, 1945. Thus the resistance offered by the
judgment-debtors to the decree-holder's application of the 17th July, 1942,
ended the 20th February, 1945.
The records of the execution case were then
sent back by the High Court and reached the Howrah Court the 28th February, 1945.
The decree holder's counsel was informed of the arrival of the records by an
order dated the 2nd March, 1945. The hearing of the case was fixed for the 5th
March 1945. the 5th March, 1945 the court made the following order;141
Decree-holder prays for time to take necessary steps. The case is adjourned to
10th March, 1945, for order. Decree holder to take necessary steps by, that
date positively. " The decree-holder applied for further adjournment, of
the case and the 10th the court passed an order in these terms:"Decree-holder
prays for time' again to give necessary instructions to his pleader for taking
necessary steps. The 'petition for time is rejected. The execution case is
dismissed part satisfaction. " When the decree-holder was apprised of this
order, he, the 19th March, 1945, made an application under section 151, Civil
Procedure Code, for restoration of the execution and for getting aside the
order of dismissal. this application notice was issued to the judgment-debtors
who raised a number of objections against the decree-holder's petition to
revive the execution. By an order dated the 25th April, 1945, the Subordinate
Judge granted the decree holder's prayer and ordered restoration of the
The operative part of the order is in these
terms:" 10th March, 1945, the decree-holder again prayed for time for the
purpose of giving necessary instructions to his pleader for taking steps. That
petition was rejected by me. 10th March,, 1945, by the same order-I mean the
order rejecting the petition for adjournment-I dismissed the 'execution -case
part satisfaction. The learned counsel behalf of the present petitioner wants
me to vacate the order by which I have dismissed the execution case part
satisfaction. He has invoked the aid of section 151, Civil Procedure Code,: for
cancellation of this order and the consequent restoration of the execution
case. I would discuss at the very outset as to whether I was justified in
dismissing the, execution case in the same order, after rejecting the petition
of the decree-holder for an 142 adjournment without giving him an opportunity
to his pleader to make any submission he might have to make after the rejection
of the petition for time. It is clear from the order that the fact that the
petition for time 'filed by the decree-holder 10th March, 1945, was rejected by
me was not brought to the notice of the pleader for the decree-holder.
It seems to me that there was denial of
justice to the decree-holder in the present execution proceeding inasmuch as it
was a sad omission my part not to communicate to his pleader the result of this
petition he made praying for an adjournment of this execution proceeding and at
the same time, to dismiss the execution case part satisfaction which has
brought about consequences highly prejudicial to the interest of the
decree-holder. I think section 151, Civil Procedure Code, is the only section
which. empowers me to rectify the said omission I have made in not communicating
to the pleader for the decree-holder as to the fate of his application for an
adjournment of the execution case and as such I would vacate the order passed
by me dismissing the execution case part satisfaction. The ends of justice for
which the court exists demand such rectification and I would do it. The learned
Advocate General behalf of the judgment-debtor Radha Kissen has argued before
me that this court has no jurisdiction to vacate the order passed by me 10th
March, 1945, dismissing the execution case part satisfaction. His argument is
that section 48, Civil Procedure Code, stands in my way inasmuch as the law of
limitation as provided in the above section debars the relief as sought for by
the decree-holder in the present application. I do not question the soundness
of this argument advanced by the learned Advocate-General.
The facts of this case bring home the fact
that in the present case I am rectifying a sad omission made by me which
brought about practically a denial of justice to the decree holder and as such
the operation of section 48, Civil Procedure Code, does not come to the
assistance of the judgment-debtor Radha Kissen," 143 It would have saved
considerable expense and trouble to the parties had the dismissal for default
chapter been closed for ever by this order of the Judge; the proceedings,
however, took a different course. A serious controversy raged between the
parties about the correctness of this obviously just order and after seven
years it is now before us. An appeal and a revision were preferred to the High
Court against this order. By its judgment dated 24th August, 1945, the High
Court held that no appeal lay against it as the question involved did not fall
within the ambit of section 47, Civil Procedure Code. It, however, entertained
the revision application and allowed it, and remanded the case to the
Subordinate Judge for reconsideration and disposal in accordance with the
observations made in the order. The High Court took the view that the
Subordinate Judge was in error in restoring the execution without taking into
consideration the point whether the decree-holder's pleader could really take
any step in aid of the execution if he had been apprised of the order of the
court dismissing the adjournment application. This is what the High Court said:"The
ground put forward by the Subordinate Judge in support of his order for
restoration is that the order rejecting the adjournment petition should have
been communicated to the pleader for the decree-holder but this was not done.
We will assume that this was an omission the part of the court. The question
now is whether it was possible for the decree-holder to take any further steps
in connection with the execution of the decree and thereby prevent the
execution case from being dismissed for default. No evidence was taken by the learned
Sub ordienate Judge this point and even the pleader who was in charge of the
execution case behalf of the decree-holder was not examined............ If
really the decree-holder was not in a position to state that day as to what was
the amount due under the decree for which he wanted the execution to be levied
and if according to him it required elaborate accounting for the purpose 144 of
arriving at the proper figure, it was not possible for him to ask the court to
issue any process by way of attachment of the property that date. It seems to
us that the learned Judge should have considered this matter properly and he
should have found proper material as to whether the decree-holder could really
take any steps after the application for adjournment was disallowed." In
sharp contrast to the opinion contained in the order of remand is the view now
expressed by the High Court this point in its final judgment under appeal
"One important circumstance which, in our opinion ; tells 'in favour of
the decree holder is the fact we have noticed before, namely, that after the'
petition for time was rejected the court did not call the execution case and
otherwise intimate its decision to go with it. In one sense this, might be
regarded as a mere error of procedure the part of the court which it would be
wrong to allow the decreeholder to take advantage of, but an, error it was, as
was admitted by the learned judge himself who had dealt with the matter, and we
do not think his opinion, can be lightly brushed aside. There can be no doubt
that the learned judge was in the best position to speak-as regards the actual
proceedings in his court % the 10th March, 1945, and if he thought that it
amounted to a 'denial of justice' to have rejected the petition for time and by
the same order to dismiss the ,execution case, it is not for us to say that he
was not right. It may well be that even if the case was called the
decree-holder's pleader would even then have been absent, but having regard to
all the facts and circumstances of the case, we think the court might yet give
the decree-holder the benefit of doubt in this matter, and assume in his favour
that his pleader would have appeared before the learned, judge and tried to
avert a peremptory dismissal of the execution case, even though he or his
client might not have been fully ready with all necessary materials for
continuing the execution proceeding.
145 As we have pointed out before and as the
court below has also found, it was possible, for the decree holder or his
pleader to have submitted to the court, some sort, of an account of the
decretal dues that date after refusal of the adjournment but even if this could
not be done, we still believe that the pleader, if he appeared, could have done
something, either by drawing the court's attention to some of its previous
orders or otherwise, by which a dismissal of the case might be prevented."
It was not difficult to envisage what the counsel would have done when faced
with such a dilemma. He, would. have straightaway stated that the execution
should issue, for an amount, which was roughly known to' him, and that the
court should, issue a process, for the arrest of the judgment debtors. BY such
a statement he would have saved the dismissal without any, detriment to his
client: who could later make another application stating the precise amount due
and praying for additional reliefs.
After remand the 13th March, 1946, the
learned Subordinate Judge restored the execution case in respect of a sum of
Rs.92,OOO only and maintained the order of dismissal in other respects. He held
that the decree-holder was grossly negligent on the 5th and the 10th March,
1945, and that due to his -negligence the execution case was dismissed in
default that even if his pleader had been informed of the order rejecting the
application for adjournment he could not have taken any steps to prevent the
dismissal of the execution; that the execution being now barred by limitation
the judgment-debtors should not be deprived of the valuable rights acquired by
them but at the same time they should not be allowed to retain the advantage of
an acknowledgment of a debt of Rs, 92,000 made by the decree-holder.
Both the decree-holder and the
judgment-debtors were dissatisfied with this order. The decree-holder preferred
an appeal to the High Court and also filed an application under section 115,
Civil Procedure 146 Code. The judgment-debtors filed cross objections in the
appeal and also preferred an alternative application in revision.
The appeal, the cross-objections and the two
revision 'applications were disposed of together by the High Court by its
judgment dated 17th February, 1947. The order dismissing the execution in
default was set aside and the case was restored terms. The decree holder was
held disentitled to interest the decretal amount from 10th March, 1945, to the
date of final ascertainment of the amount of such interest by the executing
court and was ordered to pay to the judgment-debtors a consolidated sum of Rs.
20,000 by way of compensatory costs. He was to pay this amount to the
judgment-debtora within two weeks of the arrival of the records in the
executing court or have it certified in the execution. In default the appeal
was to stand dismissed with costs and the cross-objections decreed with costs.
An application for leave to appeal to His
Majesty in Council against this order was made by the judgment-debtors and
leave was granted to them 30th May, 1947. The decreeholder also applied for
leave and he was granted leave 27th June, 1946. Both the appeals were consolidated
by an order of the court dated 4th December, 1947, and thereafter the appeals
were transferred to this court.
On behalf of the decree-holder it was
contended that the High Court was wrong in allowing the judgment-debtors Rs. 20,000
by way of compensation for costs, and that having regard to the terms of the
compromise decree it had no jurisdiction to deprive the decree-holder of the
interest allowed to him by the decree, and that it had neither power nor
jurisdiction under section 115, Civil Procedure Code, to set aside the order
dated 25th April, 1945, passed by Mr. Chakravarti, Subordinate Judge, under
section 151 of the said Code and that the interlocutory remand order of the
High Court being without jurisdiction., all subsequent proceedings taken
thereafter were null and void.
147 The earned counsel for the
judgment-debtors not only supported the judgment of the High Court to the
extent it went in their favour but contended that the High Court should have
refused to restore the execution altogether and that the assumption made by it
that the decree-holder's pleader could do something to prevent the dismissal of
the case or could present some sort of statement to the court was wholly
unwarranted and unjustifiable. It was urged that it ought to have been held
that the decree-holder was guilty of gross negligence and he was himself
responsible for the dismissal of the case, and that it was not necessary to
formally call the case after the rejection of the petition for adjournment and
that a valuable right having accrued to the judgment-debtors by efflux of time,
they should not have been deprived of it in the exercise of the inherent powers
of the court.
It is unnecessary to consider all the points
taken in these appeals because, in our opinions the point canvassed behalf of
the decree-holder that the order of remand was without jurisdiction and that
all the proceedings taken subsequent to the order of the executing court
reviving the execution were void, has force. The sole ground which the Subordinate
Judge had ordered restoration of the execution was that he had himself made a
sad mistake in dismissing it at the same time that he dismissed the adjournment
application without informing the decree-holder's counsel that the request for
adjournment had been refused and without calling upon him to state what he
wanted done in the matter in those circumstances. As the Subordinate Judge was
correcting his own error in the exercise of his inherent powers, it was not
necessary for him to investigate into the correctness of the various
allegations and counter allegations made by the parties. He was the best judge
of the procedure that was usually adopted in his court in such cases and there
is no reason whatsoever for the supposition that when the Subordinate Judge
said that he had not given any opportunity to 148 the decree-holder's pleader
to take any steps in execution of the decree after the dismissal of the
adjournment application he was not right. It could not be seriously suggested
that such an opportunity was given to the decree holder, the dismissal order of
the execution having been made at the same moment of time as the order
dismissing the application for adjournment It is quite clear that the interest
of justice demanded that the decree-holder's pleader should have been informed
that his request for adjournment had been refused, and further given
opportunity to state what he wanted done in that situation. It was wholly
unnecessary in such circumstances to speculate what the pleader would have -done
when faced with that situation.
I The solid fact remains that he was not
given that opportunity and that being so, the order dismissing the execution
was bad and was rightly corrected by the court its own initiative in the
exercise of its inherent powers.
The point for determination then is whether
such an order could be set aside by the High Court either in the exercise of
its appellate or revisional powers. It is plain that the High Court bad no
jurisdiction in the exercise of its appellate jurisdiction to reverse this
decision. In the remand order itself it was held that it was difficult to say
that the order by itself amounted to a final determination of any question
relating to execution, discharge or satisfaction of a decree and that being so,
it did not fall within the ambit of section 47 Civil Procedure Code. We are in
entire agreement with this observation. The proceedings that commenced with the
decree-holder's -application for restoration of the execution and terminated
with the order of revival can in no sense be said to relate to the
determination of any question concerning the ,execution, discharge or
satisfaction of the decree. Such proceedings are in their nature collateral to
the execution and are independent of it.
It was not contended and could not he
seriously urged that an order under section 151 simpliciter is 149 appealable.
Under the Code of Civil Procedure certain specific orders mentioned in section
104 and Order XLIII, rule 1, only are appealable and no appeal lies from any
other orders. (Vide section 105, Civil Procedure Code). An order made under
action 151 is not included in the category of appealable orders.
In support of his contention that an order
made under section 151 may in certain circumstances be appealable, Mr. Daphtary
placed reliance two single Judge judgments of the Madras High Court and a Bench
decision of Oudh. [Vide Akshia Pillai v. Govindarajulu Chetty(1); Govinda
Padayachi v. Velu Murugiah Chettiar(2); Noor Mohammad v. Sulaiman Khan(1)]. In
all these cases execution sale had been set aside by the court in exercise of
inherent powers and it was held that such orders were appealable. The ratio of
the decision in the first Madras case is by no means very clear and the
reasoning is somewhat dubious. In the other two cases the orders were held
appealable the ground that they fell within the ambit of section 47, Civil
Procedure Code, read with section 151. It is unnecessary to examine the
correctness of these decisions as they have no bearing the point before us,'
there being no analogy between an order setting aside an execution sale and an
order setting aside the dismissal of an application. The High Court was thus
right in upholding the preliminary objection that no appeal lay from the order
of the Subordinate Judge dated 25th April, 1945.
We now proceed to consider whether a revision
was competent against the order of the 25th April, 1945, when no appeal lay. It
seems to us that in this matter really the High Court entertained an appeal in'
the guise of a revision.
The revisional' jurisdiction of the High
Court is set out in the 115th section of the Code of Civil Procedure in these
terms:(I) A.I.R. 31924 Mad. 778. (3) A.I.R. 1943 Oudh 35.
(2) A.I.R. 1933 Mad. 399 20 150 "The
High Court may call for the record of any case which has been decided by any
court subordinate to such High Court and in which appeal lies thereto, and if
such subordinate court appears:
(a) to have exercised a jurisdiction not
vested in it by law, or (b) to have failed to exercise a jurisdiction so
vested, or (e) to have acted in the exercise of its jurisdiction illegally or
with material irregularity, the High Court may make 'such order in the case as
it thinks fit.,, A large number of cases have been collected in the fourth
edition of Chitaley & Rao's Code of Civil Procedure (Vol. I), which only
serve to show that the High Courts have not always appreciated the limits of
the jurisdiction conferred by this section. In Mohunt Bhagwan Ramanuj Das v. Khetter
Moni Dassi(1), the High Court of Calcutta expressed the opinion that sub-clause
(c.) of section 115, Civil Procedure Code, was intended to authorize the High
Courts to interfere. and correct gross and palpable errors of subordinate
courts, so as to prevent grave injustice in nonappealable cases. This decision
was, however, dissented from by the same High Court in Enat Mondul v. Baloram
Dey(2), but was cited with approval by Lort-Williams J., in Gulabohand Bangur
v. Kabiruddin Ahmed(1). In these circumstances it is worthwhile recalling again
to mind the decisions ,of the Privy Council this subject and the limits stated
therein for the exercise of jurisdiction conferred by this section the High
As long ago as 1894, in Hajah Amir Has8an
Khan'v. Sheo Baksh Singh(1), the Privy Council made the following observations
section 622 of the former Code of Civil Procedure, which was replaced by
section 115 of the Code of 1908:-"The question then is, did the Judges of
the lower courts in this case, in the exercise of their (I) (1897) I C.W.N.
617. (3) (1931) I.L.R. 58 Cal. III.
(a) (1899) C.W.N 581. (4) (1883-84) L.R. xi
151 jurisdiction, act illegally or with
It appears that they had perfect jurisdiction
to decide the case, and even if they decided wrongly, they did not exercise
their jurisdiction illegally or with material irregularity." In 1917 again
in Balakrishna Udayar v. Vasudeva Aiyar(1), the-Board observed:"It will be
observed that the section applies to jurisdiction alone, the irregular exercise
or nonexercise of it, or the illegal assumption of it. The section is not
directed against conclusions of law or fact in which the question of
jurisdiction is not involved." In 1949 -in Venkatagiri Ayyangar v. Hindu
Religious Endowments Board, Madras(1), the Privy Council again examined the
scope of section 115 and observed that they could see no justification for the
view that the section was intended to authorize the High Court to interfere and
correct gross and palpable errors of subordinate courts so as to prevent grave
injustice in non-appealable cases and that it would be difficult to formulate
any standard by which the degree of err-or of subordinate courts could be
measured. It was said" Section 115 applies only to cases in which no
appeal lies, and, where the legislature has provided no right of appeal, the
manifest intention is that the order of the trial Court, right or wrong, shall
be final. The section empowers the High Court to satisfy itself three matters,
(a) that the order of -the subordinate court is within its jurisdiction ;
(b) that the case is one in which the court
ought to exercise jurisdiction; and (c) that in exercising jurisdiction the
court has not acted illegally, that is, in breach of some provision of law, or
with material irregularity, that is, by committing some error of procedure in
the course of the trial which is material in that it may have affected the
ultimate decision. If the High Court is satisfied those three matters,, it has
no (1) (1917) L.R. 44 I,A. 26i.
(2) (1949) L.R. 76 I.A. 67.
power to interfere because it differs,
however profoundly, from the conclusions of the subordinate court questions of
fact or law." Later in the same year in Joy Chand Lal Babu v. Kamalaksha
Choudhury(1), their Lordships had again adverted to this matter and reiterated
what they had said in their earlier decision. They pointed out" There have
been a very large number of decisions of Indian High Courts section 115 to many
of which their Lordships have been referred. Some of such decisions prompt the
observation that High Courts have not always appreciated that although error in
a decision of a subordinate court does not by itself involve that the
subordinate court has acted illegally or with material irregularity so as to
justify interference in revision under sub-section (c), nevertheless, if the
erroneous decision results in the subordinate court exercising a jurisdiction
not vested in it by law, or failing to exercise a jurisdiction so, vested, a
case for revision arises under subsection (a) or subsection (b) and sub-section
(c) can be ignored." Reference may also be made to the observations of
Bose J. in his order of reference in Narayan Sonaji v. Sheshrao Vithoba(2)
wherein it was said that the words "illegally" and "material
irregularity" do not cover either errors of fact or law. They do not refer
to the decision arrived at but to the manner in which it is reached. The errors
contemplated relate to material defects of procedure and not to errors of
either law or fact after the formalities which the law prescribes have been
We are therefore of the opinion that in
reversing the order of the executing court dated the 25th April, 1945, reviving
the execution, the High Court exercised jurisdiction not conferred it by
section 116 of the Code. It is plain that the order of the Subordinate Judge
dated the 25th April, .
1945, was one that he had jurisdiction to
make, that in making that order he neither acted in excess, of his jurisdiction
(I) (I949) T .R . 76 J. A. 131.
(2) A.I.R. 1948 Nag. 258.
153 nor did he assume jurisdiction which he
did not possess. It could not be said that in the exercise of it he acted with
material irregularity or committed any breach of the procedure laid down for
reaching the result. All that happened was that he felt that be had committed
an error, in dismissing the main execution while he was merely dealing with an
adjournment application. It cannot be said that his omission in not taking into
consideration what the decreeholder's pleader would have done had he been given
the opportunity to make his submission amounts to material irregularity in the
exercise of jurisdiction. This speculation was hardly relevant in the view of
the case that he took. The Judge had jurisdiction to correct his own error
without entering into 'a discussion of the grounds taken by the decree-holder
or the objections raised by the judgment-debtors. We are satisfied therefore
that the High Court acted in excess of its jurisdiction when it entertained an
application in revision against the order of the Subordinate Judge dated the
25th April, 1945, and set it aside in exercise of that jurisdiction and
remanded the case for further enquiry.
The result therefore is that Appeal No. 12 of
1951 is allowed, as the interlocutory remand order of the High Court was one
without jurisdiction and that being so, the subsequent proceedings taken in
consequence of it, viz., the order of the Subordinate Judge restoring the
application for execution to the extent of Rs. 92,000, and the further order of
the High Court appeal restoring the execution case terms, are null and void and
have to be set aside and the order of the executing court dated the 25th April,
1945, restored. We order accordingly. Appeal No. 13 of 1951 is dismissed.
In the peculiar circumstances of this case we
direct that the parties be left to bear their own costs throughout, that is,
those incurred by them in the High Court in the proceedings which terminated
with the remand order, the costs incurred in the subordinate court after the
remand order, and the costs there after 154 incurred in the High Court and
those incurred in this court i n these appeals.
Appeal No. 12 allowed.
Appeal No. 13 dismissed.
I Agent for the appellant in C. A. No. 12 and
respondent in C.A. No. 12: P. K. Chatterjee.
Agent for the respondents in C. A. No. 12 and
appellants in C. A. No. 13: Sukumar Ghose.