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Abdul Majid and ors. Vs. L. Daleep Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1949All744
AppellantAbdul Majid and ors.
RespondentL. Daleep Singh and ors.
Excerpt:
.....in the case as it thinks fit. as the court below has decided that this was a suit to which the debt redemption act did not apply with respect to the 33/40th share of the debt, it had failed to exercise a jurisdiction vested in it. to our mind, this cannot be said to be a case where the court below has failed to exercise the jurisdiction so vested, because the jurisdiction was, in any case, in the lower court whether it held that a particular transaction or part of it amounted to a loan or not. it appears that they had perfect jurisdiction to decide the question which was before them and they did decide it. 165 of 1942 i am of opinion that the decision was incorrect in law but there was no failure to exercise jurisdiction and no exercise of jurisdiction illegally or with material..........money-had been transferred or not and whether the mortgagors could get the benefit of the u.p. debt redemption act in view of section 2, sub-section (9) of that act. the lower appellate court came to the conclusion that the liability for payment of 33/40th part of the debt had been transferred to the auction-purchaser and this portion of the. debt ceased to be a loan and, therefore, the benefits of the debt redemption act would not accrue to the applicants and they were only entitled to the benefits of that act with respect to 7/40th share of the debt. the lower appellate court then went into the question of accounting and ordered redemption on payment of a sum of ha. 2,050. this substantially varied the decree of the trial court which had decreed redemption without payment of any.....
Judgment:

Wanchoo, J.

1. This is a revision by Abdul Majid and Ors. under Section 115, Civil P.C. against the order of the second Civil Judges, Meerut by which the decree of the trial Court in a suit under Section 12, U.P. Agriculturists' Relief Act was modified on appeal by Daleep Singh, opposite party.

2. The applicants brought a suit under Section 12; Agriculturists' Relief Act for redemption of a usufructuary mortgage dated 20th April 1918, The mortgage in suit was executed by Abdul-Majeed, Abdul Samad, Abdul Wahab, Abdul Majid, five sons of Nasrat Ali and Mt, Bismillab Jan, widow of Nasrat Ali. Some time after the execution of the mortgage deed, the interest of some of the mortgagors was sold at a court auction. It has been found by the lower appellate Court that the equity of redemption of 33/40 part of the mortgaged property has been sold off and only 7/40th part of the mortgaged property is still with some of the mortgagors. The question then arose whether the liability of the mortgagors for payment of the mortgage money-had been transferred or not and whether the mortgagors could get the benefit of the U.P. Debt Redemption Act in view of Section 2, Sub-section (9) of that Act. The lower appellate Court came to the conclusion that the liability for payment of 33/40th part of the debt had been transferred to the auction-purchaser and this portion of the. debt ceased to be a loan and, therefore, the benefits of the Debt Redemption Act would not accrue to the applicants and they were only entitled to the benefits of that Act with respect to 7/40th share of the debt. The lower appellate Court then went into the question of accounting and ordered redemption on payment of a sum of Ha. 2,050. This substantially varied the decree of the trial Court which had decreed redemption without payment of any money holding that the entire mortgage debt had been paid off by the. usufruct under the U.P. Debt Redemption Act

3. The applicants contend, in this revision, that the lower appellate Court was not right in coming to the conclusion that the benefit of the. Debt Redemption Act would not accrue with respect to 33/40th part of the mortgage debt and that the applicants were entitled to the benefits-of the said Act with respect to the entire debt and that, therefore, the decree of the trial Court. should be restored. In this connection, reliance has been placed, on behalf of the applicants, on the case of Saran Singh v. Miththan Lal : AIR1946All174 P.B.

4. A preliminary objection has been taken on behalf of Daleep Singh, opposite party that no revision lies. In reply to this, learned Counsel for the applicants contends that the case is covered by Section 15, Clauses (b) and (c), Civil P.C. Section 115, Civil P.C., is as follows : '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

(e) 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.

5. The argument, on behalf of the applicants, is that the Courts below had to decide, under Section 9, U.P. Debt Redemption Act, whether this was a suit to which the Act applied. As the Court below has decided that this was a suit to which the Debt Redemption Act did not apply with respect to the 33/40th share of the debt, it had failed to exercise a jurisdiction vested in it.

6. Section 2, Sub-section (17), U.P. Debt Redemption Act defines a suit to which the Act applies as meaning-.

any suit or proceeding relating to a loan, but does not include proceedings under the provisions of the United Provinces Encumbered Estates Act, 1934.

Then we have to go back to Section 2, Sub-section (9), Debt Redemption Act for the definition of the word 'loan' which is as follows:

'Loan' means an advance in cash or kind made before the first day of June: 1940, recoverable from an agriculturist or a workman or from any such person and other persons jointly or from the property of an agriculturist or workman and includes any transaction which in substance amounts to such advance, but does not include an advance the liability for the repayment of which has by a contract with the borrower or his heir or successor, or by sale in execution of a decree, been transferred to another person....

7. The question in this case was whether the liability for the repayment of the advance had been transferred by sale in execution of a decree to another person. The lower appellate Court came to the conclusion that the liability for 33/ 40th part of the loan had been transferred to another person by sale in execution of a decree and, as such, the Debt Redemption Act did not apply to this part of the advance and only applied to 7/40th part which was treated as a loan.

8. We cannot accept the contention of the learned Counsel for the applicants that the case (falls under Section 115, Clause (b), Civil P.C. To our mind, this cannot be said to be a case where the Court below has failed to exercise the jurisdiction so vested, because the jurisdiction was, in any case, in the lower Court whether it held that a particular transaction or part of it amounted to a loan or not. Section 115, Sub-section (b) lean apply only to oases where the Court says {specifically that it has no jurisdiction at all and not to cases of this kind where the Court merely considers the interpretation of a particular section of a particular Act. Reliance was placed, in this connection, on behalf of the applicants, on. the case of Lachman v. Ali Bux A.I.R. (34) 1917 Oudh 228. That was a case of muafidar who had mortgaged his muafi and applied under Section 12, Agriculturists' Relief Act in the Revenue Court for redemption. It was pleaded by defendant Lachman in that suit that the mortgage was void ab initio and no application lay under Section 12, Agriculturists' Relief Act. This-plea, if given effect to, meant that the revenue-Court had no jurisdiction at all. The revenue Court decided in favour of Ali Bux, plaintiff, and that decree was practically upheld by the appellate Court. Lachman defendant then filed a revision in which Ali Bux raised an objection that no revision lay at all because the point decided was one of law. This contention was, however, repelled on the ground that though the point decided was a question of law, the decision of the point resulted in the Court assuming a jurisdiction when it did not have any such jurisdiction. Thus it was held that where the decision of a point of law resulted in the Court exercising a jurisdiction or refusing to exercise jurisdiction, the case would be covered either by Clause (a) or Clause (b) of Section 115, Civil P.C. In the case before us, however, the question of jurisdiction' of the Court does not arise at all whatever might have been the decision of the Courts below on the interpretation of the words 'the liability for the repayment of which has by sale in execution of a decree been transferred to another person.'

9. It has further been urged that, in any case, the Court acted, in the exercise of its jurisdiction, illegally or with material irregularity and revision lies under Section 115, Clause (c), Civil P.C. The leading case on the point is that of Rajah Amir Hassan Khan v. Sheo Baksh Singh 11 I.A. 237. Their Lordships of the Privy Council, while dealing with Section 115,. Civil P.C. observed as follows:

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 did 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.

It seems to us, therefore, that the material word in Section 115, Sub-section (c) is 'acted.' This clause will apply when the Court 'acts' illegally or with material irregularity in the exercise of its jurisdiction. It can not apply to oases where the Court merely comes to a wrong decision on a question of fact or of law. The use of the word 'acted' indicates the true position and limits this clause to that class of cases where the Court having jurisdiction violates any rule of law or of procedure-prescribing the mode in which such jurisdiction is to be exercised. The arriving at a conclusion or decision is only a mental operation and the Court cannot be said to be 'acting' in so coming to a conclusion or decision on a question of law or of fact. It is, of course, not possible to give an exhaustive list of cases where the Court can be said to have acted illegally or with material irregularity in exercise of its jurisdiction. But for practical purposes certain general indications can be given of the class of cases to which this clause will apply.

10. In the first place, it will apply to all cases where the Court, though it has jurisdiction, has not followed the procedure provided by law. This may be illustrated by a simple example. For instance, Order 33,R. 5 (a), Civil P.C., as amended by this Court, provides that the Court shall reject an application for permission to sue as a pauper where it is not framed and presented in the manner prescribed by Rules 2 and 3 and the applicant on being required by the Court to make any amendment within the time to be fixed by the Court fails to do so. Now if a Court dismisses an application for permission to sue as a pauper on the ground that it does not comply with Order 33, Rule 5 (a), as it was not framed and presented in the manner prescribed by Rules 2 and 3 without giving the person, making the application, an opportunity to amend it, it must be held to have 'acted' illegally or with material irregularity in the exercise of its jurisdiction. In such a case the Court 'acts' as distinguished from 'decides' when it does not give an opportunity to the person applying it to amend the application.

11. The second class of cases consists of those in which the Court does not at all apply its mind to the relevant provisions of an enactment. An illustration of this class of cases will be found in two decisions of this Court, namely, (1) Raghubir Singh alias Raghubir Saran v. Mulahand and Anr. : AIR1937All598 and (2) Khun Khun Chaube alias Sukhnandan Chaube v. Mahabir Chaube and Ors : AIR1948All261 .

12. The third class of cases consists of those where the Court completely ignores an authority of this Court as to what the law is. In such cases also, it can be said that the Court 'acted' illegally or with material irregularity in the exercise of its jurisdiction. As an instance we may point out that this Court held in Saran Singh v. Mithan Lal : AIR1946All174 , while dealing with Section 2, Clause (9), Debt Redemption Act, that 'in a case in which a mortgagor, as between himself and a third party, whether a second mortgagee or a purchaser of the equity, has left a sufficient part of the mortgage or purchase money in the hands of a second mortgagee or purchaser, he has certainly, as between them, transferred, the entire liability for the mortgage, in the sense of the ultimate burden of bearing it.' If a subordinate Court completely ignores this authority and decides the question whether the liability has been transferred or not in favour of the mortgagor on the ground that part of the equity of redemption still vests in the mortgagor, it would be 'acting' illegally or with material irregularity in the exercise of its jurisdiction and not merely 'deciding' wrongly.

13. Lastly there may be a class of cases where the Court invents a kind of arbitrary rule and 'acts' on its basis or acts in defiance of the admitted facts of the case, In such cases also, it can be said that the Court has acted illegally or with material irregularity in the exercise of its jurisdiction.

14. As an illustration of the first type, we may mention the arbitrary rule invented and followed by the Courts in the district of Basti which has been referred to in the case of Mt. Pran Dei Kunwari v. Ganga Prasad and Ors. A.I.R. (35) 1918 ALL. 54.

15. As an example of the second type, we may-mention a case where the admitted evidence is that A did not take a loan, but the Court holds that the loan was taken by A and then goes on to hold that a legatee under the will of A was bound to pay the loan because the will of A provides that the legatee will take the residue after paying all as debts.

16. We may now notice the cases cited before us. There are three cases of the Patna High Court: (1) Harihar Prasad Narain Singh v. Gopal Saran Narain Singh A.I.R. (22) 1935 Pat. 385, (2) Deonandan Thakur v. Mt. Hanso Kuer A.I.R. (24) 1937 Pat. 104 and (3) Ramkhelawan Sahu v. Bir Surendra Sahi A.I.R. (25) 1938 Pat. 22 cited in support of the applicants.

17. In the first it wag held that:

If a particular jurisdiction originates in some special law or enactment, the High Court can always interfere in the sense that it can construe the law, and in accordance with that construction compel the lower Court to exercise such jurisdiction or to refrain from exercising the jurisdiction if not warranted by the law or enactment in question.

That was, however, a case where the question arose whether Order 33, Rule 3 applies or Order 21, Rule 2. We doubt if that can be a case of a special law or enactment and even if it be so, we find ourselves unable to accept this view.

18. In the second, it was held that:

Where the Court by a misinterpretation of a statute assumed jurisdiction in respect of a matter over which ' it would not have had jurisdiction if the statute had been rightly interpreted, the High Court can interfere under Section 115, Civil P.C.

In this Court, however, a different view has been held as we shall show presently.

19. In the third it was held by the Full Bench that;

Where a lower Court has jurisdiction to decide questions of law and fact as between the parties, the superior Court will not exercise revisional jurisdiction against the decision whether it be right or wrong; but the superior Court will interfere in revision where the jurisdiction is derived from statute e.g., the Court-fees Act, and the matter is one of construction of the statute e.g., the particular category into which the suit falls and the proper court-fee payable on it.

This is similar to the second case mentioned above.

20. This Court has taken a different view as is clear from the following cases: (1) Yad Ram v. Sunder Singh : AIR1928All392 ; Surya Pal Singh v. Chiranji A.I.R. (31) 1941 ALL. 170 F. B.; (3) Megh Singh v. Surajpal Singh : AIR1946All280 . The second was a Fall Bench case of five Judges. Allsop J. observed as follows at p. 291:

I may add that there is another reason for dismissing the application in revision. The Courts below did not refuse to exercise jurisdiction. They came to a decision right or wrong that the application for execution must he dismissed and they dismissed it. This Court generally should not interfere in revision merely because it thinks that the decision of the lower Court as wrong.

21. Hamilton J, who differed from Allsop J., on the other question observed as follows at p. 293:

As regards Civil Revision No. 165 of 1942 I am of opinion that the decision was incorrect in law but there was no failure to exercise jurisdiction and no exercise of jurisdiction illegally or with material irregularity and therefore the application should be rejected with costs.

Iqbal Ahmad C.J., agreed with Hamilton J.; Dar J., and Mathur J., did not express them. selves on this point.

22. Two cases of this Court on the other side may be noticed : (1) Hafiz Abdul Noor v. Sahu Brij Mohan Saran : AIR1938All153 ) and (2) Mt. Sukhia v. Pt. Kirpa Ram : AIR1945All348 . The first case in particular supports the applicants. But as we have pointed out already two Full Benches of this Court are against that view.

23. The case before us is, in our opinion, of a different nature altogether and it cannot be said that the Court below acted illegally or with material irregularity in the exercise of its jurisdiction. It had to interpret Section 2, Clause (9), Debt Redemption Act in order to decide whether the benefit of that Act could be given to the applicants in the case before it. It interpreted that section to the best of its ability and came to a certain conclusion. Even if that conclusion is wrong, in view of a later authority of this Court in Saran Singh v. Mithhan Lal : AIR1946All174 . it cannot be said that the Court below acted illegally or with material irregularity in the exercise of its jurisdiction. It had the jurisdiction to interpret Sections 2 (9),j 2 (17) and 9 (1), Debt Redemption Act and if it made a mistake in interpreting them, it cannot be said that it acted illegally or with material irregularity in the exercise of its jurisdiction. All that has happened is that the Court had decided a question of law wrongly. Section 115 (C) does not, in our opinion, provide for revisions of wrong decisions on questions of law if those decisions are not vitiated by any 'act' of the Court which is illegal or materially irregular. In this case, it cannot be said that the decision of the lower appellate Court was vitiated by any act which was illegal or materially irregular. We are, therefore, of opinion that where the decision of the lower Court may be wrong) as to the interpretation of a particular provision of the law, no revision would lie under Section 115, Clause (c) if the' Court has not 'acted' illegally or with material irregularity in the manner explained by us., If revisions under Section 115, Clause (c) can lie merely because of a wrong interpretation of law, there would be no difference between a second appeal and a revision which there undoubtedly is.

24. We, therefore, uphold the preliminary objection and dismiss this revision. In the circumstances, we order parties to bear their own costs of this Court. The costs of the lower Courts will be as ordered by the lower appellate Court.


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