Keshardeo Chamria v. Radha Kissen Chamhia and Others
MAHAJAN J.-These are two cross-appeals from the
decision of the High Court at Calcutta in its appel
late jurisdiction dated 17th February, 1947, modify
ing the order of the Subordinate Judge of Howrah in
'fit le Execution Case No. 68 of 1936.
'l'he litigation culminating in these appeals com
menced about thirty years ago. In the year 1923,
one Durga Prasad Charnl'ia instituted a suit against
the respondents. Radha Kissen Charnria, Motilal
Chamria and their mother Auardevi 8ethaui (since
deceased) for specific performance of an agreement
' i
...
. '
S.C.R. SUPREME COURT REPORTS 139
for sale of an immoveable property in Howrah claim
ing a sum of Rs. 11,03,063-8-3 and other reliefs. The
suit was eventually decreed on compromise op 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 6!- per cent.
with yearly rests from the date fixed for payment till
realization. Part of the decretal sum was payable on
the execntioi1 of the soleuama and the rest by instal
ments within eighteen months of that date .
\Vithin fifteen months from the date of the decree
a sum of Rs. 10,00,987-15-6 is said to ha Ye been paid
towards satisfaction of it. No steps were taken either
by the jndgment-c1ebtors or the decree-holder regard
ing 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 resist
ed it and declined to admit the payments. 'fhe result
was that the court only recorded the payment of the
last three instalments which had been made within
ninet'y 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 19'29 a decree was passed in fav,our of the judg
ment-debtorn 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 on
two or three occasions. '1
1
he amount for which a
decree had been passed against the decree-holder was
also thereafter adjusted towards the amount due under
the consent decree.
On the 17th March, 1933, the decree was assigned
by Durga Prasad to the appellant Keshardeo Ohamria .
The execution proceedings out of which these appeals
arise were started by the assignee on the 10th October,
1936, for the realization of Hs. 4,20,693-8-9 an&
interest and costs. This execution had a chequered
career. 'ro begin, with, the judgment-debtors raised,
1952
Keshardeo
Ohamria
v.
Radha Kissen
Chatnria
and Others.
!lfahajan J.
1952 au objection that the assignee being a mere beuamidar
of Durga Prasad Chamria had no lociis standi to take
K0•7shardeo out execution. This dispute eventually ended in iamria • .
v. favour of the assignee after about five years' fight
Radha Kissen and it was held that the assignment was bona fide and
Chamria Keshardeo was not a benamidar of the decree-holder.
and Others. On the 17th July, 1942, Keshardeo made an appli-
Mahajan J. cation 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 on the 28th May, 1934, and not on
the date the sum was actually paid to the decree
holer. This objection was decided by the Subordinate
Judge on the 11th September, 1942, and it was held
that the judgment-debtors were liable to pay interest
on 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. On appeal the High Court by its
judgment dated the 22nd June, 1943, upheld the
decree-holder's contention, and ruled that the judg
ment-debtors were liable to pay interest up to the 4th
July, 1941, on this sum of Rs. 1,60,000. The judg
ment-debtors then applied for leave to appeal to the
Privy Council against this decision and leave was
granted. On the 13th February, 1945, .an applica
tion was made to withdraw the appeals, and with
dra.wal was allowed by an order of the court dated the
20th February, 1945. '.l.'hus the resistance offered by
the judgment-debtors to the decree-holder's applica
tion of the 17th July, 1942, ended on the 20th
February, 1945.
Therecords of the execution case were then sent
back by the High Court and reached the Howrah
Court on the 2'8th 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.
On the 5th March, 1945, the court made the following
order;-
...
S.C.R. SUPREME UOURT REPORTS 141
"Decree-bolder prays for time to take necessary
steps. The case is adjourned to 10th March, 1945,
for order. Decree-bolder to take necessary ste_Ps by
that date positively."
The decree-bolder 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 neces
sary steps. The petition for time is rejected. The
execution case is dismissed on part satisfaction. "
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 restora
tion'. 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 Subor.dinate Judge granted the decree
holder's prayer and ordered restoration of the execu
tion. The operative part of the order is in these
terms:-
"On 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. On .10th March, 1945,
by the same order-I mean the .order rejecting the
petition for adjournment-I dismissed the execution
case on part satisfaction. The learned counsel on
behalf of the present petitioner wants me to
vacate the order by which I have dismissed the execu
tion case on 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 a~
1952
Keshardeo
Ghamria
v.
Rad ha K is sen
Ghamria
and Others.
Mahajan J.
1952
Kesha.rcleo
Chamri.a
v.
Radha Kisse1i
Chan1ria.
a.nd-Others.
JlI(lha,ian J.
142 SUPREME COURT REPORTS (1953]
adjournment withouf giving him an opportmiity to his
pleader to nu.lee any submission he might have to make
af tm; 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-bolder on 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 on my part not to communi
cate to his pleader the result of this petition he made
praying for an adjournment of this execution proceed
ing and at the same time to dismiss the execution case
on part satisfaction which has brought about conse
quences 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 s1rnh I would vacate the
order passed by me dismissing the execution case 011
part satisfaction. 'l'he ends of justice for which the
court exists demand such rectification and I would do
it.· 'l'he learned Advocate-General on behalf of the.
judgment-debtor Radha Kissen has argued before me
that this court has no jurisdiction to vacate the order
passed by me on 10th March, 1945, dismissing the
execution 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 th.e 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
ho!Rer arid as such the operation of section 48, Civil
Procedure Code, does not come to the assista,nce of the
judgment-debtor Radha Kissen,"
\
, '
S.C.R. SUPREME COUR'r REPORT'S 143
It would have saved considerable expense and 1952
trouble to the parties had the dismissal for default Keshardoo
chapter been closed for ever by this order of. the Ohaniria
Judge; the proceedings, however, took a different v.
course. A serious controversy rage~ between the · Radha Kissen
parties about the correctness of this obviously just a~~a;;~:~s.
order and after seven years it is now before us. An
appeal and a revision were preferred to the High
Caur£ 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 orcler .. 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 deGree-holder's
pleader c~uld really take any step in aid of the exe-
cution if he had been apprised of the orcler 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 adjournm.:mt petition should have
been communicated to the pleader for the decree-holder
but this was not done. \Ve will assume that this was
an omission on 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 Subordinate Judge
on this point and even the pleader who was in charge
of the execution case on behalf of the decree-holder
was not examined ............ If really the decree-holder
was not in a position to state on that day as to what
was the amount d.ue under the decree for which he
wanted the execution to be levied and if according to
him it required elabQ_rate accounting for the purpose
¥ahajan J.
\
1952
Keshardeo
Cha1nria
v.
Radha Kissen
Ohamria
and Others.
Mahajan J.
of arriving at the pro.per figure it was not possible
for him to ask the court to issue any process by way
of attachment of the property on that date. It seems
to us
0
that the learned Judge should have considered
this matter properly and he should have found on
proper material as to whether the decree-holder could
really take any steps after the application for adjourn
ment was, disallowed."
In sharp contrast to the opinion contained in the
order of remand is the view now expressed by the
High Court on 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
on the execution case and otherwise intimate its deci
sion to go on with 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 tbe 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 con
tinuing the execution proceeding.
. '
..
S.C.R. SUPREME COURT REPORTS 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 on that
date after refusal of tlie 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 detri
ment to his client who could later maA:e another
application stating the precise amount due and pray
ing for additional reliefs.
After remand on the 13th March, 1946, the learned
Subordinate Judge restored the execution case in res
pect of a sum of Rs. 92,000 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 reject
ing 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 limita
tion 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 advan
tage 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
1952
· Keshardeo
Chamria
v.
Radh-i Kissen
Chamria
and Oth•rs.
Mahajan J.
1952
Keshard6o
Ohamria
v.
Radha Kissen
Chamria
and Othors.
Mahajan J,
i46 SUPREME COURT REPORTS (1953]
Code. The judgment-debtors filed cross objections in
the appeal and also preferred an alternative applica
tion i.n 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 on terms. The decree
holder was held disentitlecl to interest on the decretal
amount from 10th March, 1945, to the elate 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-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 stancl dismissed with costs aucl the
cross-objections decreed with costs.
An application for leave to appeal to His Majesty
in Council against this order was made by the judg
ment-debtors and leave was granted to them on 30th
May, 1947. 'rhe decree-holder also applied for leave
and he was granted leave on 27th June, 1946. Both
the appeals were consolidated by an orcler of the court
dated 4th December, 1947, ancl thereafter the appeals
were transl erred to this court.
On behalf of the decree-hotel.er it was contended
that the High Court was wrong in allowing the
iudgment-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-bolder of the interest allowed to him by
the decree, and that it had neither power nor jurisdic
tion under section 115, Civil Procedure Code, to
set aside the order dated 25th April, 1945, passed by
Mr. Chakravarti, Subordinate Judge, under sec
tion 151 of the said Code and that the interlocutory
remand order of the High Court being without
jmisdicti~n, all subsequent proceedings taken there
after were nu II an cl void.
-.
S.0.R. SUPREME COURT REPORTS 147
'l'he learned 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 some
thing to pre;-ent 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 wa.s himself respon-
8ible for the dismissal of the case, and that it was not
necessary to formally call on the case after the rejec
tion of the petition for adjournment and that a valu
able right having ·accrued to t,he judgment-debtors by
efflux of time, they should not have been deprived
of it in the exerciRe of the inherent powers of the ·
court.
It is unnecessary to consider all the points taken in
these appeals because, in our opinion, the point can
vassed on 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 on 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 tinie that he dismissed the
adjournment application without informing the
decree-holder's counsel that the request for adjourn
ment 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 correct
ing 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 parti~s. He was the
best judge of the procedure that was usually adopted
in his court in such cases and there is no reason what
soever for the supposition that when the Subordinate
Judge said that he had not given any opportunity to
1952
KeshardBo
Cha1nria
v.
Radha Kissell
Chainria
and Others,
Mahajan J.
1952
Keshardea
Cha1nria
v.
Radha Kissen
Chrintria
and Others.
Mahajan J,
148 SUPREME COURT REPORTS [1953)
the decree-holder's pleader to take any steps in execu
tion of the decree after the dismissal of the adjourn
ment application he was not right. It could not he
seriously suggested that such au 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 ap pllcation 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
11djournment h11d been refused, and further given
opportunity to state what he wanted done in that
situation. It was wholly unnecessary in such cir
cumstances to speculate what the pleader would have
done when faced with that situatinn. 'rhe solid fact
remains that he was not given that O]l"]Jortunity 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.
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 had no jurisdiction
in the exercise of its appellate jurisdiction to reverse
this decision. In the remand order itself it was )leld
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 be. seriously
urged, that an order UI\der section 151 simpliciter is
"
S.C.R. SUPREME COURT . REPORTS 149.
appealab·le. Under the Code of Civil Procedure 1952
certain specific orders mentioned in section 104 and Ksshardso
Order XLIII, rule 1, only are appealable and. no Ohamria
appeal lies from any other orders. (Vide section 105, v.
Civil Procedure Code). An order made under section· Ra~ha Kisssn
151 is not included in the category of appealable Ohamria
orders. . and Others.
In support of his contention that an order made Mahajan J.
under section 151 may in certain circumstances be
appealable, Mr. Daphtary placed reliance on two
single Judge judgments of the Madras High Court.
and on a Bench decision of Oudh. [Vide Akshia
Pillai v. Govindaraj1ll1t Ohetty(1) ; Govinda Padayachi
v. Velu Murugiah Ohettiar( 2 ); Noor Mohammad v.
Sitlaiman Khan(3)]. 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
ap"pealable. The ratio of the decision in the first
Madras case is by no means very clear and the reason-
ing is ~omewhat dubious. · In the other two cases the
orders were held appealable on 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 on the point before us, there being
no analogy between an order setting aside an execu-
tion sale and an order setting aside the dismissal of
an application. The High Court was thus right in
upholding the prel1mil).ary 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 Cou;rt entertained an
appeal in the guiRe of a rnvision. The revisional
jurisdiction of the High Oourt is set out in the 115th
section of the Code of Civil Procedure in these
·terms:- ·
(r) A.LR. 1924 Mad. 778.
(2) A.LR. 1933 Mad. ~99•
iO
(3) A.LR. 19 f3 Ol!dh ~?·
1952
Keshardeo
Chamria
v.
lliO SUPREME COURT REpORTS [1953)
.- '"The High Court may call for the record qf any·
case which has been decided by any court subordinate
to 11uch High Court and in which no appeal lies
thereto, and if such subordinate court appe~rs:
Radha Ki&.~Bn (a) to have exercised a jurisdiction not vested in
it by law, or Chatnria
and Ot1ie7'S.
Jlahajan .r.
(b) to have failed to exexcise a jurisdiction so
vested, or
(c) to have acted in the exercise of its. jurisdic
tion 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 Qourts have not always appreciated the
limits of the jurisdiction conferred by this segtion. In
Mohunt Bhagwan Ramanuj Das v. Khetter Mani
Dassi(1), ·the High Court of Cf!<lcutta expressed the
opinion that sub-clause (<l) 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 Mandul v. Baloram Dey('), but was cited -with
approval by Lort- Williams J. in Gulabchand Bangur
v. Kabiruddin Ahmed('). In these circumstances it
is worthwhile recalling again to mind the decisions
of the Privy Council on this subject and the li'mits
stated therein for the exercise of jurisdiction confer-
red by this section on the High Courts. ·
As long ago as 1894, in Hajah Amir Hassan Khan v.
Shea Baksh Singh('), the Privy Council made the
following ohservMions on section 622 of the former
Code of Civil Procedure, which was replaced by sec
tion 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.
(>) (1899) 3 C.W.N. ;81,
(3) (1931) I.L.R. 58 Cal. lIJ.
(4) (1883-8'\) L.R, " I.A. 2~7.
. '
-
. .
..
..
S.C.R. SUPREME COURT REPORTS 151
jurisdiction, act illegally or with material irregularity. 195fJ
It appears that they had perfect jurisdiction to decide K'8harden
the case, and even if they decided wrongly, they did Chamria
not exercise their jurisdiction illegally or with malierial. v.
irregularity." Radha Kissm
· · Oha1nria
In 1917 again in Balakrishna Udayar v. Vasudeva and Others.
Aiyar(1), the Board observed:-
"It will be observed that the section applies to
jurisdiction alone, the irregular exercise or non
exercise of it,r 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 in-
volved."
In 1949 in Venkatagiri Ayyangar v. Hindu Religious
. Endowments Board, Madras(2 ), the Privy Council
again examined the scope of section 115 and observed
that they could see no justification for the view that
the S'ection 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-appe'alable cases and t4at it would be difficult
to formulate any standard by 'which the degree of
error of subordinate courts could be measured. It
wa~ said-
'' Section 115 a~plies 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 it
self on three matters, (a) that the order of the sub-
01·dinate court is within its jurisdiction; (b) that the
case is one in which the court ought to exercis·e juris
diction; 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
(I) (I9I71 L.R. 44 LA. 261 •
Mahajan J.
1962
Keshardeo
Ohamria
v.
Radha Kiss~n
Cha1nr·ia
and Others.
Mahajan J.
power to interfere because it differs, however pro
foundly, from the conclusions of the subordinate.court
on questions of fact or law."
Later in the same·year in Joy Chand Lal Babu v.
Kamalaksha Ohoudh1try(1), their Lordships had again
adverted to this matter and reiterated what they had
said in their eadier decision. 'fhey pointed out-
"Tbere have been a very large number of deci
sions of Indian High Courts on 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), never
theless, if the erroneous decision results in the sub
~ordinate eon.rt exercising a jtuisdiction not vested in
; it by law, or failing to exercise a jurisdiction so vested,
a case for revision arises under sub-section (a) or sub-
section (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(') wherein it was said that the wwds
"illegally" .and "material irregularity" do not cover
either errors of fact or law. '!.'hey do not refer to
the decision arrived at but to the manner in which
it is reached. '!.'he 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 beeri complied with.
We are therefore of the opinion that in reveroing
the order of the executing court dated the 25th April,
1945, reviving the execution, the Hi_gh Court exer
cised jurisdiction not conferred on it by section 115
of th.e Code. It is plain that the order of the Sub- -
ordinatB 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
(r) (1949) T .R. 76 I.,. 13r. (2) A.LR. 1948 Nag. :.:58 .
,.
S.C.R. "SUPREME COURT REPORTS 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 reaci1ing
the result. All that happened was that he felt that
he had committed an error in dismissing the main
execution while he was merely deal\ng with an ad
journment 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 discus
sion of the grounds taken by tile decree-holder or lihe
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 Comt was one without jurisdiction and that
being so, the subsequent proceedings taken in conse
quence 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
on appeal restoring the execution citse on terms, are
null 'and void and have to be set aside and the order
of the e:8'ecuting court dated the 25th April, 1945,
restored. We order accordingly. Appeal No. 13 of
1951 is dismissed.
·rn the peculiar circumstances of this case we direct
that the parties be left to bear their own costs through
out, that is, those incurred by them in the High
·Court in the proceedings which terminated with the
remand order, the costt; incurred in the subordinate
conrt after the remand order, and the costs thereafter
1952
Keshardco
Cha1>wia
v.
Radha Kissen
Cha,nria
and Others,
Mahajan J.
I
1953
-!C~hardso
Chclmria
v.
Radha Kissen
Ghamria
and Others.
1953 -·
Oct. 37.
ii>4 SUPRE1ME° COURT REPORTS (1953j
iµcurred in the High Court. and those incurred in•
this court in these appeals.
Appeal No. 12 allowed.
• Appeal No. 18 dismissed.
Agent for the appellant.in C. A. No. 12 'and res
pondent in C.A. No. 12: p; 'K. Chatterjee.
Agent for the respondebts. in ·q. A._No. ~2 and
appellan~~ in C. A. No. 13: Sulmniar Ghose.
-~
RAJ LAKSHMi DASI 'AND OTHERS
v.
BANAMALI SEN AND OTHERS
BHOLANA'l'H
0
SEN AND OTHERS
v.
RAJ Lf,.KSHMI DASI AND Q'fHERS.
(MEHR CHAND :r-&;J}JI,-1.JAN; CHANDRASEKHAR/I.' AIYAR
and BHA~WATI JJ.]
Res iudicata-Land acquisition proceeditius-Dispute .as t.o
title between rival claimants-Decision after contest-Whether
operates as res jud\ca.ta. in stibsequent su,it-Ejfec.t of decisio-n on
mortg/J/jees.
Where the right to receive compensation for property
acquir6d in land aequisitioh proceedings as b8tween rival clainla.nts
depends on the title to the p~operty acquired an~ the dispute as to
title is raised· by the parties and is decided by the Land Acqui
sition Judge after ·contest, thiB decision as to ~itle operates as ,:es
juif.,icata in a·subsequent suit betweerl the same parties· on the ques
tion of title_. The binding force of a judgment delivered under the
Land Acquisition Act depends on general principles' of lq.w a.nd not
on s. 11 of the Civil Procedure Code, and the decision of a Iiand
Acquisition Judge wciuld operate as res judicata even though he
was not competent to try the subsequent suit. ,
If a mortgagee intervenes in ln.nd acquisipion. proceedings and
makes a claim for compensation,. and any question of title arises
about the title of the mortgagor in respect to .the land acquired
which affects the claim for compensation, ne- has every right to
prot.ect that title and if he defends that title and the issueis
decided against his mortgagor. the decision would operate as res
judic~ta even as against the mortgagee.
Certain premises wb.ich formed part of the" estate of a de
cieased person were acquired in ~nd a.cquiaition proceedinga.
'fhere was a triangular contest about the right to the compen
~ation moµey between A and B, two rival claimants to": four a.nn4s