1. I think in this case a rule must issue. The Subordinate Judge has gone beyond the condition prescribed in Sections 278 and 280 of the Civil Procedure Code. It is found that the possession is with the claimant, and the judgment-debtor is not in possession, physical or constructive. But the Subordinate Judge has decided against the claimant upon the ground that the sale-deed on which he relies is invalid. I will not, however, pursue this matter further, because I understand my learned colleague to agree with me so far. But he thinks that under the extraordinary jurisdiction we are not bound to interfere even where there is an error as to jurisdiction, as the defeated party has a remedy by suit.
2. It is true that our power under the extraordinary jurisdiction is discretionary. But it is a well-known rule of law that all judicial discretion must be exercised not arbitrarily but according to sound judicial principle. The decision in Dayaram Jagjivan v. Govardhandas Dayaram 28 B. 458 proceeds upon this ground as I understand it. There the Court declined to interfere because there were some equitable considerations. My opinion is that when we decline to interfere under Section 622, some reasonable ground must be assigned or else it will be an arbitrary exercise of the discretion. And this I have known to be the practice of this Court. Further the Full Bench decision of this Court in Shiva Nathaji v. Joma Kashinath 7 B. 341 settled the point finally in 1853 and binds us. And the sixth principle laid down in it supports my view.
3. Where the Legislature provides a summary remedy and where the Legislature entitles a party to resort to it, it is not a judicial exercise of our discretion to hold that we should refuse to interfere because he has remedy by suit, though the Court below has either assumed jurisdiction which does not exist or declined to exercise jurisdiction which the law has given. If it were so, Section 622 would be rendered practically nugatory.
4. There is a' difference of opinion here. My view is that the power which the Court has under Section 622 of the Civil Procedure Code is entirely a discretionary power. And taking the Code as a whole I read the section as intended in a large measure to prevent a miscarriage of justice which otherwise is irremediable. But in a case of this kind, of an order under Section 280, what seems to me to be the obvious remedy and that intended and clearly indicated by the Code (see Section 283) is a remedy by suit and not a remedy by application to this Court to exercise its power under Section 622. For this reason I should decline to allow a rule to be granted.
5. The application was finally disposed of by a bench composed of Batchelor and Beaman, JJ. Before that date, the petitioner had filed a regular suit for removing the attachment.