http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 12  

PETITIONER: KESHARDEO CHAMRIA

       Vs.

RESPONDENT: RADHA KISSEN CHAMRIA AND OTHERSRADHA KISSEN CHAMRIA AND OTHE

DATE OF JUDGMENT: 30/10/1952

BENCH: MAHAJAN, MEHR CHAND BENCH: 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)

ACT: Civil Procedure Code (Act V of 1908), ss. 47,115, 151-Execu- tion 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.

HEADNOTE: 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 12  

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 powers. (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.

JUDGMENT: 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-objectiou 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 12  

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 instalments 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 consent decree.    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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 12  

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 decreeholder’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  execution. 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 12  

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  com- municating  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 12  

execution  case  from  being  dismissed  for  default.    No evidence was taken by the learned Subordienate 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 decreeholder 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 doubtin 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 decreeholder 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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 12  

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  execu- tion; 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  decreeholder  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  decree- holder  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 12  

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 12  

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 appeallies 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  Pro- cedure  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 non- appealable  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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 12  

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 Courts.     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 I.A. 237. 151 jurisdiction,  act illegally or with material  irregularity. 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 12  

justify  interference  in revision  under  sub-section  (c), nevertheless, if the erroneous decision results in the  sub- ordinate 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 complied with. 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  decree- holder’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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 12  

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.