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Har Prasad and anr. Vs. Jafar Ali - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Judge
Reported in(1885)ILR7All345
AppellantHar Prasad and anr.
RespondentJafar Ali
Excerpt:
.....was decided appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested; and secondly, that the cases in which such interference was justified were not only those in which there was assumption by the lower court of a jurisdiction which it did not possess, but also cases in which there was failure to exercise a jurisdiction which it did possess. section 92 of act xii of 1879 gave the high court the power to interfere, not only in the two kinds of cases mentioned in section 622 of the code of 1877, hut also in cases where the lower court appeared 'to have acted in the exercise of its jurisdiction illegally or with material irregularity,'thus distinctly conferring a third power, distinct from those which the high court previously..........was decided appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested; and may pass such orders in the case as the high court thinks fit.' the changes here made are two: first, that not, only the judgments of the subordinate appellate courts, but those of courts of first instance, might be interfered with in revision; and secondly, that the cases in which such interference was justified were not only those in which there was assumption by the lower court of a jurisdiction which it did not possess, but also cases in which there was failure to exercise a jurisdiction which it did possess. there was, therefore, a clear increase of the powers of revision, and it is important to see how legislation on this subject went further......
Judgment:

Oldfield, J.

1. Article 164 of the Limitation Act provides thirty days, as the period of limitation for an order to set aside a judgment ex-parte, from the date of executing any process for enforcing the judgment, and by Section 4 of the Act it is enacted that 'subject to the provisions contained in Sections 5 to 25 inclusive, every suit instituted, appeal presented, and application made after the period of limitation prescribed there for by the second of the Act, shall be dismissed, although limitation has not been set up as a defence.'

2. When therefore a Court has admitted an application to set aside an ex-parte judgment in contravention of the Law of Limitation it must be held to have acted in the exercise of its jurisdiction illegally within the meaning of Section 622, and, there being no appeal to this Court in the case, this Court has, in my opinion, powers of revision under Section 622 of the Civil Procedure Code.

3. In the case before us the Judge erred in his application of the Law of Limitation. The period of limitation will run from the date of executing any process for enforcing the judgment; and in this case will run from the date of attachment of the property of the judgment-debtor in execution of the decree; and the application will he barred unless the judgment-debtor has been kept by means of fraud from the knowledge of his right do make the application. This is a question which the Judge must determine before he can properly entertain the application.

4. The order is set aside, and the case will go back to the Judge for disposal with reference to the above remarks. Costs to follow the result.

Mahmood, J.

5. The question whether the order of the District Judge can be revised by this Court, under Section 622 of the Civil Procedure Code, opens up a very important question of law, in discussing which it is not necessary to go further back than Act VIII of 1859, the old Code of Civil Procedure. That Act, as it originally stood, does not seem to have contained any pr visions enabling the High Courts to interfere in revision, but Section 35 of Act XXIII of 1861 laid down the following rule: 'The Sudder Court may call for the record of any case decided on appeal by any subordinate Court in which no further appeal shall lie be the Sudder Court, if such subordinate Court shall appear in hearing the appeil to have exercised a jurisdiction not vested in it by law; and the Sudder Court may set aside the decision passed on appeal in such case by the subordinate Court, or may pass such other order in the case as to such Sudder Court may seem right.'

6. It is important to notice here that the only cases in which the High Court had power to interfere in revision were those 'decided on appeal,' and in which the subordinate appellate Court had 'exercised a jurisdiction not vested in it by law.' So the law stood until Act X of 1877 was passed. Section 622 of that Act was as follows: 'The High Court may call for the record of any case in which no appeal lies to the High Court, if the Court by which the case was decided appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested; and may pass such orders in the case as the High Court thinks fit.' The changes here made are two: first, that not, only the judgments of the subordinate appellate Courts, but those of Courts of First Instance, might be interfered with in revision; and secondly, that the cases in which such interference was justified were not only those in which there was assumption by the lower Court of a jurisdiction which it did not possess, but also cases in which there was failure to exercise a jurisdiction which it did possess. There was, therefore, a clear increase of the powers of revision, and it is important to see how legislation on this subject went further. Section 92 of Act XII of 1879 gave the High Court the power to interfere, not only in the two kinds of cases mentioned in Section 622 of the Code of 1877, hut also in cases where the lower Court appeared 'to have acted in the exercise of its jurisdiction illegally or with material irregularity,' thus distinctly conferring a third power, distinct from those which the High Court previously possessed. Now Section 622 of Act X of 1877, as amended by Section 92 of Act XII of 1879, has been reproduced verbatim in the present Code, and therefore all arguments and decisions which apply to the former section apply equally to the present. The question then arises, how the present section is to be interpreted. Does it mean that in cases where 'no appeal lies to the High Court,' the revisional powers of the Court are co-extensive with those which it has in second appeal by virtue of Section 584 of the Code? I cannot think that it msans this. Here I may refer to the Full Bench case, decided by this Court, of Maulvi Muhammal v. Syed Husain I.L.R. 3 All. 231 in which the majority of the Judges held that when, under Section 622 of Act X of 1877, the High Court had alled for the record of a case in which no appeal lay to it, it might, under that section, pass any order in such case which it might have passed if it had dealt with the case as a second appeal. The late Chief Justice even went further, and held that the High Court might, under that section, pass in such case any such order as it thought proper, whether in regard to fact or law. A similar view of Section 622 was taken by the Madras High Court in Subbaji Rau v. Srinivasa Rau I.L.R. 2 Mad. 264 where it was held that where the lower Court had failed to do so, the High Court was competent to interfere in revision on the ground of fraud vitiating execution-sales.

7. Another case to which I wish to refer is Shiva Nathaji v. Joma Kashinath I.L.R. 7 Bom. 341 in which West, J., in an elaborate judgment, with which, speaking generally, I agree, explained the scope of the revisional powers Of the High Courts. Ail these rulings, however, with the exception of the principles of the last, must now be regarded as superseded by the recent decision of the Privy Council in Amir Hasan Khan v. Sheo Baksh Singh I.L.R. 11 Cal. 6; but before I deal with the judgment in that case, I wish to refer to the recent Full Bench ruling of this Court in Mugni Ram v. Java Lal Ante p. 336 in which the decision of their Lordships of the Privy Council was followed. That ruling was to the effect that the Privy Council had decided that only questions relating to jurisdiction can be entertained under Section 622.

8. I was a party to this ruling of the Full Bench, and I am anxious that its precise meaning or at least my meaning in concurring in it, and effect should not be misunderstood. The question is, what was decided by the Privy Council in the case referred to? The substance of the judgment is contained in, the concluding words of the penultimate paragraph: 'The question then is, did the Judges of the lower Courts in this case, in the exercise of their jurisdiction, act illegally or with material irregularity. It appears that they had perfect jurisdiction to decide the question which was before them, and they had decide it. Whether they decided it rightly or wrongly, they had jurisdiction to decide the case; and even if they decided wrongly, they did not exercise their jurisdiction illegally or with material irregularity.'

9. The view of law here expressed is of course binding upon this Court, and I proceed to consider the exact meaning of the passage. And in doing so it seems to me that the word 'jurisdiction,' as used by their Lordships of the Privy Council, is the most important word.

10. The word in its ordinary meaning simply means the legal power or authority of hearing and determining disputes for the purposes of administering justice, and in its broad legal sense it may be taken to moan the power of administering justice according to the means which the law has provided, and subject to the limitations imposed by that law upon the judicial authority. Such limitations may either be territorial or pecuniary with reference to the value of the subject-matter in litigation, or they may relate to the nature of the litigation, or the domicile and nationality of the parties or the class or rank to which the tribunal belongs.

11. I am of opinion that the expression, as used by their Lordships, must be understood in its broad sense and not too narrowly, and this interpretation is supported by the fact that in the last paragraph of their judgment their Lordships say that 'the Judicial Commissioner had no jurisdiction in the case' under Section 622 of the Civil Procedure Code. Considering that the Judicial Commissioner exercises in Oudh (to use their Lordships' own words) 'the same powers as the High Court,' the dictum cannot be understood to mean that he had no 'jurisdiction,' in the narrow sense of the word, to entertain an application for revision under Section 622 in the case. I understand the passage simply to mean that he Had exceeded his powers, and that his order was therefore ultra vires.

12. Understanding in this sense the word 'jurisdiction' in the judgment of the Privy Council, I proceed with my views in regard to the revisional powers of this Court under Section 622 of the Civil Procedure Code. I have already said that the section contemplates three cases in which the revisional powers of the High Court may be exercised. The first is assumption by the lower Court of a jurisdiction which it does not possess. The second is its failure to exercise a jurisdiction which it does possess. The third is where there is neither of these two, but there is exercise of the jurisdiction which the Court possesses and has exercised in a manner which is vitiated by illegality or material irregularity. The precise question before the Privy Council was, whether or not a particular suit was barred by Section 13 or Section 43 of the Civil Procedure Code. Now I think it can be shown by considering this question that there may be a decision which is made in the legal exercise of jurisdiction which is erroneous, but not illegal or materially irregular. I gather from the report in Amir Hasan Khan v. Sheo Baksh Singh I.L.R. 11 Cal. 6 that the lower Courts had found that the matter in issue was not ns judicata under Section 13, and that it could not have been included in the former litigation so as to be affected by Section 43. In that case no appeal lay from the decision of the Lower Appellate Court to the Judicial Commissioner, because Section 21 of the Oudh Civil Courts Act allows no second appeal from two concurrent judgments of lower Courts. In such a case I myself should not think it right to interfere in revision. The lower Courts had jurisdiction, and did not exercise it in any illegal or irregular manner. But suppose either of the Judges in that case had said: 'It is true that this same matter, which is now in dispute, was litigated before under fie circumstances described in Section 13 of the Code; but although it was then tried and decided, the Judge trying the former suit appears to me to have decided erroneously, and I shall therefore try it myself, and determine it according to my own views.' Or suppose the Court had said: 'This claim could, no doubt, have been made a part of the suit which was formerly tried, but the circumstances are such that I think it would be inequitable to apply the provisions of Section 43, and I therefore allow the plaintiff to sue.' In these cases I think that there would he an exercise of jurisdiction, but 'illegally' and 'with material irregularity.' Or to take a case which actually came before my brother Oldfield and myself a few days ago. Suppose that a Judge, professing to act under Section 206 of the Civil Procedure Code, which empowers him in certain cases to amend his decree, chooses to say that 'dismissed' means 'decreed,' and proceeds practically to alter the whole nature of the decree. There again we have jurisdiction, in its narrow sense, existing in the Judge, but exercised by him 'illegally' and 'with material irregularity.' Or, again, take Section 624 of the Civil Procedure Code, which provides that (except in certain cases) 'no application for a review of judgment, other than that of a High Court, shall be made to any Judge other than the Judge who delivered it.' And suppose that a Judge, disregarding this provision, reviews the judgment of his predecessor. I think that here, too, we have an example of jurisdiction being exercised illegally and with material irregularity. Once more, take the case of the Judge of a Small Cause Court (from whose decision there is no appeal), before whom a claim for Rs. 50 is brought, and witnesses produced, but who dismisses the claim without having heard the witnesses, on the ground that the plaintiff's story is obviously untrue. This is another instance of an illegal or materially irregular exercise of jurisdiction.

13. And so in the present case. Upon the findings recorded by the Judge, it is clear that he, though' professing to apply the law of limitation, has in fact contravened the provisions of that law as contained in Section 4 of the Limitation Act, To allow an application of the kind referred to in Article 164 of Schedule ii to be made after the true period of limitation has expired is to act, not indeed without jurisdiction in its narrow sense, but 'in the exercise of jurisdiction illegally or with material irregularity,' in other words, to act ultra vires.

14. This is all that I desire to say in this case regarding the scope of the revisional powers of the High Court as explained by their Lordships of the Privy Council.

15. The Full Bench ruling of this Court in Magni Ram v. Jiwa Lal Ante p. 336 does not appear to me to go beyond the views which I have expressed, and if I had thought otherwise I should not have assented to it.

16. The reason why I hold the District Judge to have decided wrongly on the question of limitation is this. Article 164 of Schedule ii of the Limitation Act makes the period of limitation for an application by a defendant for an order to set aside a judgment ex parte to run from 'the date of executing any process for enforcing the judgment.' In the case of Pachu v. Jaikishen Weekly Notes 1884 p. 322 it was held that 'any' process must be taken to mean 'first' process, and for obvious reasons I agree with that decision. Here the first process for enforcing the judgment of the 15th September 1882, was the attachment of the property on the 19fch June 1883. The application to set aside the judgment was not made till the 13th December 1883, and was therefore obviously barred by limitation. The Munsif, however, held on the evidence before him that the decree-holder was guilty of fraud in concealing the proceedings both of the suit and of the execution from the judgment-debtor Jafar Ali, and that the judgment-debtor is therefore entitled to claim the benefit of Section 18 of the Limitation Act. The Judge, in consequence of his mistake as to the period of limitation, did not go into the merits of the question, namely, into the question of fraud, and whether the execution-proceedings were within the knowledge of the defendant. I therefor concur in my brother Oldfield's order allowing the application, setting aside the Judge's order, and remanding the case to him for disposal on the question of fraud.


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