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TMI Blog1952 (10) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... t till realization. Part of the decretal sum was payable on the execution of the solenama and the rest by installments within eighteen months of that date. 3. Within fifteen months from the date of the decree a sum of ₹ 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 decree-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 installments which had been made within ninety days before the application and the judgment-debtors 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uary, 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. On the 5th March, 1945, the court made the following order :- 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. 7. The decree-holder applied for further adjournment of the case and on 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 on part satisfaction. 8. When the decree-holder was apprised of this order, he, on the 19th March, 1945, made an application under section 151, Civil Procedure Code, for restoration of the execution and for setting aside the order of dismissal. On 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 J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case on 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. 9. 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 involv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith it. In one sense this might be regarded as a mere error of procedure on the part of the court which it would be wrong to allow the decree holder 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 on 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 on 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 material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in default was set aside and the case was restored on terms. The decree-holder was held disentitled to interest on 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 ₹ 20,000 by way of compensatory costs. He was to pay this amount to the judgment-debtors 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. 15. 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 on 30th May, 1947. The decree-holder also applied for leave and he was granted leave on 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. 16. On behalf of the decree-holder it was contended that the High Court was wrong in allowing the judgment-debtors ₹ 20,000 by way of compensation for costs, and that ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge 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 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. 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 on its own initiative in the exercise of its inherent powers. 19. The point f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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. 22. 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 :- 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 no 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 (c) 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. 23. A large number of cases have been collected in the fourth edition of Chitaley Rao ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... difficult to formulate any standard by which the degree of error 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 on 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 on those three matters, it has no power to interfere because it differs, however profoundly, form the conclusions of the subordinate court on questions of fact or law. 27. Later in the same year in Joy Chand Lal Babu v. Kamalaksha Choudhury (1949) I.R. 76. I.A. 131, their Lordships had again adverted to this ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 30. 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 ₹ 92,000, and the further order of the High Court on appeal restoring the execution case on 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. 31. In the peculiar circumstances of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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