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TMI Blog1973 (3) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... etition are Baliram Jadhav and Jaiwant Jadhav, Who are said to have entered into an agreement for purchase of the suit land along with another piece of land bearing Survey No. 2 belonging to Gopalrao Vithoji Deshmukh, who is opponent No. 3 in this petition and who was one of the original non-applications, The said Gopalrao also figures as a judgment-debtor as will appear from the facts set out hereafter. 5. Now, it has been stated that on the 23rd of June 1962, there was an oral agreement of sale between Gopalrao as the owner of the land and Baliram and Jaiwant, who agreed to purchase it for a sum of ₹ 23, 000/- out of which ₹ 11,000/- are said to have been paid as advance, It is significant that this agreement was an oral agreement, but it is stated in the plaint of the suit ultimately filed by Baliram and Jalwani against Gopalrao, being Special Civil Suit No. 58 of 1967, that the terms of the agreement were that ₹ 9,000/- were to be paid as advance to enable Gopalrao, the seller, to obtain permission from the concerned authorities to alienate the suit lands by way of sale as required under Section 47 of the Hyderabad Tenancy and Agricultural Lands Act. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being on the lands, Gopalrao, who had failed in his efforts to obtain surrender, was not in a position to deliver possession of the lands to Baliram and Jaiwant pursuant to the contract of sale. Lastly, it is to be noticed from the plaint itself that Gopalrao is said to have refused to accept a notice dated the 22nd of November 1967, calling upon him to obtain surrender of possession from the tenants and execute a sale deed in favour of Baliram and Jaiwant pursuant to the agreement of sale. 8. It is in these circumstances that Special Civil Suit No. 58 of 1967 was filed and it has been stated at the Bar by Mr. Deshpande, the learned Advocate for the petitioners, that Gopalrao defended the suit for some time, but ultimately on the 11th of October 1968 a compromise was entered into and a consent decree was obtained for ₹ 15,000/- in favour of Baliram and Jaiwant from the Civil Court. 9. A certified copy of the compromise, as stated at the Bar, has been produced before me and it is significant to note that there is a statement to which obviously both the parties to the suit subscribed, viz., that due to tenancy litigation the defendant could not fulfil his part of the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Civil Judge is without jurisdiction., that the learned Civil Judge failed to exercise jurisdiction vested in him under Order XXI, Rules 58 and 59 of the Code of Civil Procedure and that, in any event, the Court below has acted with material irregularity, Mr. Deshpande made the following propositions:- (1) On the 18th of December 1967, viz., the dated on which the suit was filed, as well as on the 11th October 1968, viz., the date on which the consent decree was passed, the third opponent Gopalrao had no subsisting right or interest in the land comprised in Survey No. 10. (2) The learned Civil Judge had misunderstood and misapplied the judgment of this High Court in Dnyanu Baby v. Gulab Eknath, (1960) 62 Bom LR 940 and, therefore, acted illegality. (3) Manifest facts regarding the existence of tenants on the land have been overlooked by the learned Civil Judge causing a basic error affecting his decision of merits. (4) The learned Civil Judge made use of admissions between Baliram and Jaiwant on the one hand and Gopalrao on the other against the petitioners. (5) The Court below acted illegally in exercising its jurisdiction on an erroneous view of Section 55 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder XXI, Rule 58 and investigated the claim or objection according to law? and (2) whether the civil revision application is maintainable against such an order? 16. It is appropriate to first appreciate the scope and content of the inquiry under Order XXI, Rule 58, which is admittedly of a summary nature. It is therefore necessary to set out in extensor the provisions of Order XXI, Rules 58 to 61 as to notice that Rule 63 enables the aggrieved party to file a substantive suit after an order under Order XXI, Rule 58 has been made. Rules 58 to 61 of Order XXI are as follows:- 58. (1) Where any claim is preferred to or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to investigate the claim or objection with the like power as regards the examination of the claimant or objector, and in all other respects as if he was a party to the suit: Provided that no such investigation shall be made where the Court considers that the claim or objection was designedly or unnecessarily delayed. (2) Where the property to which the claim or objection a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at in an investigation under Order XXI, Rule 58, the most important fact to be noticed is with regard to possession. 19. The words in Rule 58 are: the Court shall proceed to investigate the claim or objection . It is, therefore, the duty of the Court to investigate a claim preferred to it under this Rule, unless it sees reason to reject it on the ground of delay. It is not in dispute that question of delay does no arise in the case before me. 20. As to the extent of the investigation, it was pointed out by Lord Hob house in Sardhari Lal v. Ambika Prasad, (1888) 15 I. A. 123- The Code does not prescribe the extent to which the investigation should go; and though in some cases it may be very proper that there should be as full an investigation as if a suit were instituted for the very purpose of trying the question, in other cases it may also be the most prudent and proper course to deliver an opinion on such facts as are before the Subordinate Judge at the time, leaving the aggrieved party to bring the suit which the law allows to him . It is of course possible to define the extent of the enquiry which would constitute such an investigation as that would depend on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her to find whether that possession of the objector was on his own account for himself or as trustee or on account of the judgment-debtor. It requires to be emphasised that the direction of the investigation, which the Court has to carry out, points to possession being the criteria. It is, of course, possible that in the course of such an investigation as to who is in possession of the property subjected to attachment, the question of some legal right or interest or title may also arise and if such legal right affects the determination of the question as to who is the real person in possession in fact or in law, then such a legal right or interest will naturally have to be taken into account. But it is also settled law that complicated questions as to titled are not to be gone into under the summary procedure of the investigation under Order XXI, Rule 58. 23. It is to be noticed that in the case before me, the learned Civil Judge seems to have been oblivious of what in fact the provisions of Order XXI, Rules 58 to 61 required form him with regard to the investigation of the claim or objection. It is obvious that the learned Civil Judge instead of directing his enquiry into findi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the property attached within the meaning of Rule 59. The question which was required to be investigated was if the possession of the tenants who were admittedly on the land was on account of Gopalrao, the judgment-debtor or on account of the petitioners as the purchasers of the property from Gopalrao. 26. Instead of directing himself to such a kind of enquiry, which is clearly contemplated and enjoined by Rules 58, 59, 60 and 61, the learned Civil Judge misdirected himself by proceeding to determine a collateral question as to whose claim was superior. 27. And during the course of that inquiry the only issue that he raised was whether there was a statutory charge on the land bearing Survey No. 10 in respect of the decree passed in Special Civil Suit No. 58 of 1967. In fact this was the only issue that he raised, although his attention was invited specifically to the fact that tenants were in possession of the property and that it was because the judgment-holder had taken the responsibility to get a surrender form these land to Baliram and Jaiwant that the transaction between them fell through. 28. The learned Civil Judge relied on the statutory charged said to have been c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... predicates who facts: (1) that the acceptance of delivery must not have been improperly declined and the purchase-money must have been properly paid and (2) that if delivery is properly declined then a claim for earnest and costs should also arise. 29. It follows that the decree-holders would have been entitled to a statute charge under the section, only and only if they had not declined to accept delivery of the property improperly. The learned Civil Judge then goes on to find: But they declined to accept the delivery of the property properly as is laid down in Section 55(6)(b) of the T.P. Act . it does not appear to be clear as to on what basis the learned Civil Judge arrived at this finding. There is nothing on record which would warrant such a finding. On the other hand, the record goes to show that there were obstacles in the way of the seller giving possession to the decree-holders pursuant to the agreement of sale and these obstacles were known to the decree-holders at the time of the agreement of sale and were in fact taken into consideration when arriving at the agreement of sale. This is clearly set out in the decree-holder's paint in Special Civil Suit No.58 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... session and on whose account. I am, therefore, satisfied that the essential question which had to be decided by the learned Civil Judge has not at all been decided by him and the conclusion is, therefore, inescapable that the learned Civil Judge failed to exercise jurisdiction vested in him under Order XXI, Rule 58 and otherwise acted with material irregularity and that, therefore, the order dated 24th December 1970 is liable to be set aside. 36. As regards the maintainability of the petition. Mr. Deshpande, the learned Advocate for the petitioners, invited my attention to a very recent judgment of the Supreme Court in M.L. Sethi v. R.P. Kapur [1973]1SCR697 , in which according to Mr. Deshpande, the revisional powers of the High Court have been some what expanded, although the earlier decisions in Manindra Land Building Corporation v. Bhutnath [1964]3SCR495 , Abbasbhai v. Gulamanbi. [1964]5SCR157 and Pandurang Dhondi v. Maruti Hari Jadhav [1966]1SCR102 , have not been affected and have in fact been relied upon. Mr. Kurdukar, the learned Advocate for opponents Nos. 1 and 2, has drawn my attention to the judgment of the Supreme Court in D.L.F. Housing and Construction Co. (P) Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be justified if the question was not related to the lower Court's jurisdiction. Thus the High Court could not correct errors of fact however gross they may be or even errors of law . If the nexus to jurisdiction was absent, misconstruction of a decree by the lower Court, even though it amounted to an error of law, did not justify interference by the High Court, under its revisional jurisdiction. 41. In the very recent case of [1973]1SCR697 the scope and extent of the revisional powers of the High Court has once again been analysed by the Supreme Court and the distinction between the errors committed by Subordinate Courts in deciding questions of law which have relation to or are concerned with questions of jurisdiction of the said Courts and errors of law which have no such relation or connection emphasised. 42. In an illuminating discussion of the traditional and modern concepts of jurisdiction, Matthew, J. who spoke for the Court, said: - The word 'jurisdiction' is a verbal cast of many colours. Jurisdiction originally seems to have had the meaning which Lord Baid ascribed to its in Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;excess' of jurisdiction have been assimilated or, in other words, the extent to which we have moved away from the traditional concept of 'jurisdiction'. The effect of the dicta in that case is to reduce the difference between jurisdictional error and error of law within jurisdiction almost to vanishing point. The practical effect of the decision is that any error of law can be reckoned as jurisdictional. This comes perilously close to saying that there is jurisdiction if the decision is right in law but none if it is wrong. Almost any misconstruction of a statute can be represented as 'basing their decision on a matter with which they have no right to deal', 'imposing and unwarranted condition' or 'addressing themselves to a wrong question'. The majority opinion in the case leaves a Court or Tribunal with virtually no margin of legal error. Whether there is excess of jurisdiction or merely error within jurisdiction can be determined only by construing the empowering statute, which will give little guidance. It is really a question of how much latitude the Court is prepared to allows. In the end it can only be a value judgment(See H.W.R. Wade, &# ..... X X X X Extracts X X X X X X X X Extracts X X X X
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