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K.B. Mohammad Maqsood Ali Khan Vs. B. Hoshiar Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1945All377
AppellantK.B. Mohammad Maqsood Ali Khan
RespondentB. Hoshiar Singh and ors.
Excerpt:
- - the wakf included some other property and clearly referred to the two mortgages. it must be clearly borne in mind that this application was made as a mutwalli. the intention of the legislature will best be carried out by refraining from interference with orders passed by subordinate courts in the course of the trial of suits. ' the legislature does not provide even one appeal against an order under section 30. if a revision is, it is contended, entertained, the very object of the legislature shall be defeated. which provides that in the case of a decree passed in accordance with the award, no appeal shall lie from such decree except in so far as the decree is in excess of or not in accordance with the award, and quoted the well-known authority of their lordships of the judicial.....sinha, j. 1. the facts of this case are somewhat complicated, but the learned counsel for the parties have argued it with ability and sir wazir has placed them before us with great clarity and succinctness. one mohammad naim khan made a mortgage in favour of two persons, kundan lal and shankar lal, on 15th january 1922. this was followed by another mortgage by the same mortgagor in favour of the same mortgagees on 29th july 1923. or 8th april 1926 mohammad naim khan made a wakf-alal-aulad comprising the property covered by both the mortgages. the wakf included some other property and clearly referred to the two mortgages. on 10th october 1926 naim died and his son, khan bahadur maqsud ali khan, became the mutwalli under the deed. on 28th august 1928 the first mortgage was put in suit and.....
Judgment:

Sinha, J.

1. The facts of this case are somewhat complicated, but the learned Counsel for the parties have argued it with ability and Sir Wazir has placed them before us with great clarity and succinctness. One Mohammad Naim Khan made a mortgage in favour of two persons, Kundan Lal and Shankar Lal, on 15th January 1922. This was followed by another mortgage by the same mortgagor in favour of the same mortgagees on 29th July 1923. Or 8th April 1926 Mohammad Naim Khan made a wakf-alal-aulad comprising the property covered by both the mortgages. The wakf included some other property and clearly referred to the two mortgages. On 10th October 1926 Naim died and his son, Khan Bahadur Maqsud Ali Khan, became the mutwalli under the deed. On 28th August 1928 the first mortgage was put in suit and on 19th April 1929 the final decree was passed in favour of one of the mortgagees, viz., Shanker Lal, to whose share had, on a partition between the two brothers, this mortgage fallen.

2. On 17th November 1931, Kundan Lal and Shanker Lal brought a suit, on the basis of the mortgage, for money and, in the alternative, for sale. This was Suit No. 95 of 1931. It was dismissed by the learned Civil Judge on 23rd December 1931 but was decreed by the High Court on appeal, on 16th March 1986. On 16th September 1936 the amount due on this mortgage was Rs. 27,823-11-4. A small amount of Rs. 9 odd was awarded as costs and the total was Rs. 27,832-14-0. This closes the first chapter of the case and I might, for the time being, leave it at this.

3. On 7th May 1936 Maqsud Ali Khan made an application under Section 4, Encumbered Estates Act. It is significant that Maqsud Ali Khan and his father, Naim, had been in possession of some property other than the property covered by the wakf. On 11th June 1936 the Collector sent the application to the Civil Judge of Saharanpur. On 24th July 1936 during the pendency of this application, Maqsud Ali Khan applied under Sections 5 and 30, Agriculturists' Relief Act, for amendment of the decree and also for instalments. It must be clearly borne in mind that this application was made as a mutwalli. The prayer for the benefits of the Agriculturists' Relief Act was stoutly opposed by means of several objections. On 7th October 1936 there was an objection by Kundan Lal, one of the obligees. This was followed by a fresh objection on behalf of the sons of Shanker Lal, viz., Kesho Ram and Om Prakash. A third objection was made again by Kesho Ram and Om Prakash, but not in their individual capacity. This was, on the other hand, made by them as the heirs and representatives of their father, Shanker Lal, who had died meanwhile. The last objection was dated 10th July 1937. This was made by Kundan Lal, although it was he who had made the first objection, dated 7th October 1936. The substance of the objections was that Maqsud Ali Khan, having sought the aid of the Encumbered Estates Act, was not entitled to the benefits of the Agriculturists' Relief Act simultaneously. It was the order, dated 10th July 1937 passed on this application, which has been a fruitful source of controversy between the parties. Tip quote the precise terms of the learned First Civil Judge: 'The application under the Agriculturists' Relief Act is struck off.' This order was challenged in appeal and the learned District Judge, while dismissing the appeal, expressed himself in these terms:

As a result of the Collector's accepting the application, all other proceedings must be stopped and the decree in question cannot, therefore, be reopened. The lower Court's order dismissing the application is, therefore, correct. The appeal must, therefore, be rejected with costs.

This concludes the second chapter of this protracted litigation. I now come to third chapter: The final decree in the second suit was passed on 14th October 1939. On 20th May 1940, B. Hoshiar Singh, the son of B. Kundan Lal, applied for its execution. Exception was taken to the application for execution on the ground that the proceedings under the Encumbered Estates Act were still pending and no execution could, under Section 7 of the Act, proceed. This objection was repelled by an order, dated 3rd August 1940. An appeal was preferred to this Court on 20th August 1940, but was dismissed on 21st August 1942. This Court while affirming the order of the Court below left it open to Maqsud Ali Khan in his capacity as mutwalli to apply for review of the order of the Court dismissing his application under Sections 5 and 30, Agriculturists' Relief Act.

4. In order to appreciate the above, it is necessary to follow the fate of one other application for execution of the decree by one Rupchand which was passed on an earlier mortgage granted by Mohammad Naim Khan. The decree-holders put their decree, on the basis of that mortgage, in execution. Maqsud Ali Khan applied for stay of proceedings under Section 7, Encumbered Estates Act. The learned Civil Judge dismissed the objection on the ground that the two capacities were different. The application under the Encumbered Estates Act was, according to the view of the learned Civil Judge, made in his personal capacity, whereas the property under execution was waqf property. This view was affirmed by a Bench of this Court on 14th March 1940, vide Mohammad Maqsud Ali Khan v. Roopchand : AIR1940All387 . The order of the High Court, dated 21st August 1942, is really based upon the above decision. Their Lordships at page 354 say that:

the applicant in his written statement did not mention the debts due from the waqf estate nor did he include the waqf properties in the list of properties supplied by him.

It is conceded before us that it was not so; the waqf properties were eventually introduced within the scope of the application. If it were permissible to say so, it is very difficult to follow the line of reasoning. The application under the Encumbered Estates Act was, no doubt, made in a personal capacity, but the property brought into the hotchpotch represented both the waqf property and also some property outside the waqf. The application qua the property not covered by the waqf was certainly made in a personal capacity, but qua the waqf property it must be deemed to have been made as a mutwalli. There was, therefore, at least in part, an identity of interest and fusion of capacities. Besides, Section 7 of the Act aims primarily at the preservation of the property. The property was waqf, but the waqf was al-al-aulad and Maqsud Ali Khan had a two-fold interest in it--his interest as a mutwalli and also as a beneficiary. There can be no doubt that the latter was a personal interest. The preamble of the Act also pro. vides 'for the relief of encumbered estates' and does not speak of the character or capacity of the owner of such estates.

5. After the decision of the High Court on 21st August 1942, Maqsud Ali Khan applied for a review of the order of the Civil Judge, dated 10th July 1937. This application was made on 5th October 1942, and was dismissed by the learned Judge on 28th November 1942, on the ground that the original order of 10th July 1937, having been taken in appeal before the learned Judge, it was only the appellate order of 27th November 1937, of which review could be sought. On 5th December 1942, an application for review was presented before the District Judge. This was dismissed on 25th February 1943, and it is against this order that the present application in revision has been preferred before us. A preliminary objection has been raised on behalf of the respondents that no revision lies, inasmuch as no 'case' has been decided within the meaning of Section 115, Civil P.C. The expression 'case decided' has never been judicially defined so far. It was the subject-matter of the decision in Buddhoo Lal v. Mewa Ram ('21) 8 A.I.R. 1921 All. 1 but it is impossible to discover in it any precise definition. The principal judgment of the majority of the Full Bench was delivered by Piggott J., and at p. 566 his Lordship has thus summed up his opinion:.the intention of the Legislature will best be carried out by refraining from interference with orders passed by subordinate Courts in the course of the trial of suits....

6. That was a case where the order which was sought to be revised, was one by which the Munsif of Etawah had repelled the objection of the defendants that the suit was not cognizable by him. It was one of the issues, but the case remained, as a result of the decision of that issue, still pending. The question again came up for consideration in Ram Sarup v. Gaya Prasad : AIR1925All610 . In that case the District Judge of Bareilly had set aside an ex parte decree under Order 9. Rule 13, Civil P.C. Lindsay J., who delivered the principals judgment in the Full Bench, observes at page 58:

It would be unprofitable to discuss the various rulings concerning the meaning of the word 'case' as used in Section 115. No definition of the word is to be found in the Code of Civil Procedure and probably no exhaustive definition of the word could be given.

The cognate expression 'cause' has been defined in England in the Judicature Act of 1873 as 'including any action, suit or other original proceeding between a plaintiff and a defendant, and any criminal proceeding by the Crown'; and it seems to me that when an attempt is made by a defendant under Order 9, Rule 13, to assert his right to have the ex parte decree set aside, there is an 'original proceeding' between a plaintiff and a defendant.

7. It will thus appear that the term is so elastic that their Lordships felt themselves unable either to find a definition or to attempt one themselves. The matter again came up in 1931 in Radha Mohan Datt v. Abbas Ali Biswas : AIR1931All294 Sen J., who delivered the Full Bench judgment at p. 389 says:

The term 'case' has not been defined in the Code. It may indeed be doubted if the term is capable of an exhaustive definition.

In 1934 a similar difficulty was experienced in defining the term 'case' in Gupta & Co. v. Kripa Ram Brothers : AIR1934All620 , and the difficulty presented itself again in 1936 in Suraj Pali v. Ariya Pretinidhi Sabha, U.P. : AIR1936All686 . Indeed, their Lordships of the Judicial Committee have expressed a similar view in Balakrishna Udayar v. Vasudeva Aiyar ('17) 4 A.I.R. 1917 P.C. 71 p. 269. If, however, their Lordships treated the order in the cases in Ram Sarup v. Gaya Prasad : AIR1925All610 and Radha Mohan Datt v. Abbas Ali Biswas : AIR1931All294 as amounting to a 'case decided', the present, a fortiori, possesses, in a much large measure, the incidents of a 'case decided'. In those eases, the Court below retained the seisin of the case, although a particular proceeding had been started and concluded. In the present case, the proceedings, starting with a prayer for a re-consideration of the order of 27th November 1937, have definitely concluded. There is no proceeding pending before the learned District Judge; the chapter has closed both as regards the Court and the present applicant. It is not necessary to further investigate this matter inasmuch as it is concluded by Bireshwar Das v. Uma Kant : AIR1937All297 and Shah Chaturbhuj v. Shah Mauji Ram : AIR1938All456 . I have entered into a discussion of this term inasmuch as the learned Counsel for the opposite party has made it a grievance that 1937 A. L. J. 3638 makes no attempt to discuss it and the discussion in 1938 A. L. J. 628 9 at page 633, proceeds from a different point of view.

8. The next objection is that even if the order under complaint amounts to a 'case decided, the scheme of the Agriculturists' Relief Act forbids a revision and, at all events, the learned District Judge having exercised his jurisdiction, the conditions requisite under Section 115, Civil P.C. are lacking. It is contended that Section 5 contemplates only one appeal and provides that 'the decision of the appellate Court shall be final.' The Legislature does not provide even one appeal against an order under Section 30. If a revision is, it is contended, entertained, the very object of the Legislature shall be defeated. In support of this contention, reliance has been placed upon the case in Nihal Singh v. Ganesh Dass Ramgopal 0044/1936 . Their Lordships at page 125 hold that

If the order is to be interfered with in revision, it would affect the finality just as much as interference therewith in appeal. By way of analogy we might refer to the provisions contained in Schedule 2, Para. 16, Civil P.C. which provides that in the case of a decree passed in accordance with the award, no appeal shall lie from such decree except in so far as the decree is in excess of or not in accordance with the award,

and quoted the well-known authority of their Lordships of the Judicial Committee in Ghulam Khan v. Muhammad Hassan ('02) 29 Cal. 167. With great respect, I think the analogy is not true. An arbitration is the chosen forum of the parties and the law attaches special sanctity to the arbitrator's verdict. Their Lordships of the Privy Council have themselves made this point clear at page 183:

The principle of finality which finds expression in the Code is quite in accordance with the tendency of modern decisions in this country. The time has long gone by since the Courts of this country showed any disposition to sit as a Court of appeal on awards in respect of matters of fact or in respect of matters of law.

9. Their Lordships only gave effect to the principle laid down in the well-known case in Adams v. Great North of Scotland Railway Co (1891) 1891 A.C. 31. This Court has, in Aftab Begam v. Abdul Majid Khan ('24) 11 A.I.R. 1924 All. 800 made the position of an arbitrator clear:

They (the arbitrators) may be right, they may be wrong, it is no business of the Court. Judges cannot be reminded too often that an arbitration, in substance, ousts the jurisdiction of the Court, except for the purpose of controlling the arbitrators and preventing misconduct, and for regulating the procedure after the award. So far as the hearing of the merits is concerned and the decision contained in the award, the Court has nothing to say, good, bad or indifferent.

10. It is not pretended that if a Court of law commits an error of law, substantive or adjective, the appellate Court cannot rectify the same. To extend to an order passed by a Court of law the sanctity which attaches to the verdict of 'the chosen representative of the parties' is, in the words of their Lordships, 'to do violence' to the well-settled notions of law. The word 'final' has been the subject of consideration in several cases in this Court. Section 45, Clause (5), Encumbered Estates Act, speaks in almost similar terms-'the decision on an appeal under this section shall be final.' A bench of this Court in Ashraf v. Saith Mal : AIR1938All47 held that

The word 'final'...could only mean 'not subject to appeal.' It could not be final in the sense that the power to interfere in revision is shut out....

11. The point came specifically for decision in 1938 A. L. J. 628. Iqbal Ahmad J., as his Lordship then was, has held at page 633:

The revisional jurisdiction of this Court is defined and regulated by Section 115, Civil P.C. By that section this Court is empowered to exercise revisional jurisdiction with respect to all cases 'decided by any Court subordinate to' this Court provided the conditions laid down by el. (a) or Clause (b) or Clause (c) of that section are satisfied. The section is one of wide application and embraces all cases decided by Courts subordinate to this Court. By Section 2 (5), Agriculturists' Belief Act, 'Court' is defined as meaning a 'civil Court.' It follows that the Court exercising jurisdiction under Section 5 of the Act is a civil Court, and, as such, subordinate to this Court. This Court is, therefore, in accordance with Section 115, Civil P.C. competent to revise the order passed by a Court under Section 5, Agriculturists' Relief Act. There is nothing in that Act that can be interpreted to divest this Court either expressly or by necessary implication of the revisional jurisdiction conferred by Section 115, Civil P.C.

12. The expression in question again fell for consideration in Kedar Nath v. Ali Ahmad ('42) 29 A.I.R. 1942 All. 219.That was a case under the Provincial Insolvency Act, Section 75 of which provides only one appeal and expressly says that, 'the order of the District Court upon such appeal shall be final.' Their Lordships held that:

In other words, only one right of appeal is provided by the Insolvency Act so far as decisions other than decisions under Section 4 of the Act are concerned. The finality of the appellate order of the district Court can be challenged only by way of revision to this Court.

13. It is true that the proviso to Sub-clause (1) of Section 75, Provincial Insolvency Act, contemplates the exercise by the High Court of its revisional jurisdiction, but the interpretation of the word 'final' is in consonance with what fell from Niamatullab and Allsop JJ., in 19S7 A. L. J. 110114 and also with what was decided in 1938 A. L. J. 628. The tendency of this Court has not been to narrow the scope of Section 115, Civil P.C. but to invoke its aid to meet the ends of justice. The case in British India Corporation Ltd., Cawnpore v. Shanti Narain : AIR1935All310 is perhaps an extreme case. It was doubtful if the order of the District Judge of Cawnpore, which was sought to be revised, was made in a judicial capacity at all-at least, this was the contention. Their Lordships held that:

All that is necessary to bring into play the revisional jurisdiction of this Court under Section 115, Civil P.C. is that (i) there be a case decided, (ii) the decision be of a Court subordinate to this Court, and (iii) the decision be not appealable. If these conditions are satisfied this Court has undoubtedly the revisional jurisdiction conferred on it by Section 115, Civil P.C. and is vested with the discretion to exercise that jurisdiction provided the case falls within Clause (a) or (b) or (c) of Section 115, Civil P.C.

14. All the conditions are fulfilled in the present case. The chapter has closed before the learned Judge. He is subordinate to the High Court. The order is not appealable. Unless there is something in the Act, to quote their Lord ships again, 'either expressly or impliedly ousting the revisional jurisdiction of this Court', this Court has a right to revise the order of the learned Judge. I have looked in vain for such a provision in the Act itself. It next falls to be considered as to whether the learned Judge has exercised his jurisdiction. He has, relying upon Kawdu v. Berar Ginning Co., Ltd. held that it was open to him to exercise his powers under Section 151, Civil P.C. if a case for the exercise of such a power was made out. Into the merits of the matter-whether the special circumstances of the case called for an interference - he has not entered. By special circumstances, I do not mean a plea of hardship or argumentum ad misericordiam, but the unfortunate situation which has been brought about principally by the contradictory pleas of the decree-holders themselves. Before the Special Judge, while opposing the application under Sections 5 and 30, Agriculturists' Relief Act, they pleaded that the relief under both the Acts was being claimed in one and the same capacity, but in the execution Court they insisted that the capacities were different. In other words, they did what the law does not allow them to do, that is, they approbated and reprobated in the same breath. The learned Judge dismissed the matter some that summarily by saying that after the decision by the High Court in 19401 it was clear that the two capacities were different and the application should have been made immediately after that. He interpreted the applicant's conduct as an attempt 'to delay the proceedings.' I am of opinion that the learned Judge has, if he has not failed to exercise the jurisdiction, acted illegally and with material irregularity. If the applicant succeeds in his attempt to establish that the application was not barred by limitation, the very foundations of the judgment of the learned District Judge will, in a sense, disappear. To that question I shall immediately advert.

15. The question of limitation is not free from difficulty. The precise form in which it has emerged in this case, is really novel. No authority has been placed before us in which the facts were similar. It has, however, been contended by Sir Wazir Hasan that, whatever the terms in which the prayer was couched, the application of 5th December 1942, amounted, in substance, to a prayer for revival of the previous application. The learned Special Judge, by his order of 10th July 1937, merely 'struck off' the application, whereas, on appeal, the learned Judge held that by reason of the proceedings under the Encumbered Estates Act, the application was not maintainable and observed 'all other proceeding is stopped.' I do not read in these orders any judicial determination of the application. The one merely struck it off, while the other proceeded upon the assumption that the learned Judge felt himself precluded from deciding it by reason of some bar, which, in the events which have happened, never existed or was merely illusory. In Qamaruddin Ahmad v. Jawahir Lal ('05) 27 All. 334 their Lordships had to consider the fate of an application for execution of 24th August 1888, and the subsequent events which had arrested its course. Execution was prayed for on 23rd November 1897, after the disappearance of the impediments in its way. Their Lordships repelled the plea of limitation and held that

the execution proceedings commenced by the petition of 24th August 1888 were never finally disposed of and hat the application now under consideration was in substance, as well as in form, an application to revive and carry through a pending execution suspended by no act or default of the decree-holder, and not an application to initiate a new one.

The italics are mine. The application of 24th July 1936, under Sections 5 and 30, Agriculturists' Relief Act, was 'never disposed of.' The tests, therefore, appear to be-whether there has been a final adjudication and whether the party concerned is at fault. The point has been clarified in a somewhat analogous case, in Bijai Saran Sahi v. Deo Kishen Prasad : AIR1926All734 . The matter seems to have been set at rest finally by a decision of this Court in Bhan Datt v. Mt. Tulsa Kuer : AIR1940All151 , their Lordships observe:.there is abundant authority for the view which we hold that an order 'striking off' an application and consigning it to the record room does not terminate the proceedings in which the order is passed.

16. Can it be said in the present case that there has been a final adjudication or that the applicant has been at fault? In every attempt of his, the applicant was thwarted by the decree-holders by mutually contradictory pleas. The last case goes so far as to hold that the removal of the bar casts an obligation upon the Court to proceed suo motu. In the present case there is no order specifically removing the bar. But it must also be borne in mind that there was no real or effective bar in the applicant's way. Whatever impediments existed or were supposed to exist were due to the conduct of the decree-holders and the consequent attitude of the Court. The subsequent events have proved that the conduct was wrongful and the attitude mistaken and there was really no effective bar. In Bhan Datt v. Mt. Tulsa Kuer : AIR1940All151 and other previous cases, there was an effective bar. It was removed by the order of the Court; in the present case a bar was supposed to exist; the subsequent pronouncement has removed it. The result, in actual practice, in both cases is, therefore, the same and the judgment-debtor is entitled to approach the Court and make a request, on the principle laid down in Bhan Datt v. Mt. Tulsa Kuer : AIR1940All151 to the Court to proceed with a reconsideration of his original application.

17. The applicant, in the alternative, contends that even if the present application is not treated as an application for revival, he is entitled to the benefit of Section 14, Limitation Act. The Court below has treated the application as an application for review and applied Article 173, Limitation Act, which provides 90 days from the date of the decree or order. Section 14 (c), Limitation Act, will entitle the applicant to exclude

the time during which he has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the same party for the same relief

provided 'the proceeding is prosecuted in good faith.' The application under Sections 5 and 30, Agriculturists' Relief Act, was dismissed by the learned Judge on 27th November 1937. The present application was made on 5th December 1942. The application for execution, on the basis of the earlier mortgage, had been made long before the order of 27th November 1937. The whole object of the application, under Sections 5 and 30, Agriculturists' Relief Act, was preservation of the applicant's property. The whole object of resisting execution was again the preservation of his property. The period therefore which was covered by the execution proceedings, the decree-holders trying to proceed against the property and the applicant trying to resist them will be excluded, if the applicant's good faith is established. It is true that the learned Judge has remarked that his main object was 'to delay the proceedings.' I do not share his view. The history of this case is remarkable in one feature-a ceaseless attempt on the part of the applicant to claim redress and an equally persistent and ceaseless attempt on the part of the decree-holders to oppose it. In my opinion, the learned Judge took a very superficial view of things, when he characterised the applicant's conduct as amounting to dilatory tactics. In this view of the case, there can be no doubt that the applicant is entitled to the benefit of the time taken by the execution proceedings. The principle enshrined in this section has been extended even to a case under Section 5, Limitation Act, by their Lordships of the Privy Council in Rajendra Bahadur v. Rajeshwar Bali . The tendency has been not to restrict the operation of this section, but to follow its principle in suitable cases even in proceedings which cannot strictly be called proceedings in a Court of law. A Bench of this Court in Behari Lal Baijnath Prasad v. Punjab Sugar Mills Co., Ltd. : AIR1943All162 extended it to proceedings before the arbitrator. The question therefore is one of facts. If the conduct of the person claiming its benefits has been bona fide, that is, he has established his good faith, if he has been prosecuting with due diligence another civil proceeding, he is entitled to its benefits. If any of these elements is lacking, he cannot take advantage of it. In my opinion, the applicant has, in this case, established his good faith abundantly and he has also established that he has been ceaseless and persistent in pressing his claim before various Courts at various stages. If he did not succeed, the failure was due not to any laches on his part, but to the wrongful conduct of the decree-holders and the mistaken view of the Court.

18. Mr. Gopinath Kunzru has, however,' con-tended that even if the benefit of Section 14 is ex-tended to the applicant, the only time which could be excluded was from 10th July 1937, the date of the order striking off the application under Section 5 and under Section 30, Agriculturists' Relief Act, and 3rd August 1940, when the applicant's objection under Section 7, Encumbered Estates Act, had been dismissed. This argument, to my mind, loses sight of the steps to resist execution which had been taken by the applicant in the execution proceedings which followed the earlier mortgage decree. It has next been contended by the opposite party that the application was an application for review and the Agriculturists' Relief Act does not contemplate such an application. Reliance has been placed for this contention on Section 27 of the Act, which provides that

the provisions in the Code of Civil Procedure in regard to suits shall be followed, so far as they can be made applicable, to all proceedings under this chapter.

Section 27 falls in Chap. 3. Section 5 falls in Chap. 2. Section 30 falls in Chap. 2. The argument therefore is that as the Code of Civil Procedure applies only to proceedings under chap. 3, the benefit of the provision for review, which is the creature of the Code, cannot be extended to the applicant in the present case. The observations of their Lordships in 1938 A. L. J. 6288 at p. 633, quoted above, furnish a complete answer to this contention.

19. Assuming for the sake of argument that Order 47, Rule 1, has no application, I am of opinion that this argument is, of no avail to the opposite party. If the application was an application for revival, no question of Order 47, Rule 1, arises. If the application was not an application for revival and if Order 47, Rule 1, also had no application, the inherent powers of the Court are there to right a wrong in suitable cases. Even the learned Judge has held that Section 151, Civil P.C. has application. He has refused to exercise his powers under that section only because he thought that the requisite conditions had not been made out. In considering Section 151, Civil P.C. certain important features of this case and cardinal principles governing the application of the principle of that section, must be clearly borne in mind. The Agriculturists' Belief Act is 'a remedial statute' and the words of such a statute

must be construed so far as they reasonably admit, so as to secure that the relief contemplated by the statute shall not be denied to the class intended to be relieve: vide Raghuraj Singh v. Hari Kishan Das .

Also see the observations of Mathur J., in Surya Pal Singh v. Chiranji : AIR1944All170 . That the applicant belongs to the class for whose benefit the Act, which in the words of their Lordships is a 'remedial Act,' was passed, there can be no doubt. There is equally no doubt that in the present case the applicant is not responsible for the unhappy position in which he has been placed. Can it be said that there is any justification for denying him the redress to which he is entitled under a special legislation simply because there has been some lapse of time, for which, again he is not accountable? Whether the present application is treated as an application for review or an application for revival of the previous application, it is, after all, a question of procedure. I do not mean to say that the rules of procedure should not be strictly followed, but there are exceptional cases, and the present is one such case, where a strict adherence to the rules of procedure will lead to a negation of justice. 'Procedure,' said Lord Penzance in the well-known case in Kendall v. Hamilton (1879) 4 A.C. 504

is but the machinery of the law after all-the channel and means whereby law is administered and justice reached. It strangely departs from its proper office when in place of facilitating it is permitted to obstruct, and even extinguish legal rights, and is thus made to govern where it ought to subserve.

20. It must also be remembered that it was the act of the Court when it struck off the application of 24th July 1936, which has been the real cause of mischief. The two capacities, in which the applications under the Encumbered Estates Act and the Agriculturists' Relief Act were made, were, as subsequent events and judicial pronouncements have established, different and the applicant was, under the mistaken view of the Court, denied what was legally his. Incidentally there was no final order, determining the matter. There is the high authority of Cairns L. C. that

One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors and when the expression 'the act of the Court' is used, it does not mean merely the act of the primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case : Rogers v. The Comptoir d'Escompte de Paris (1871) L.R. 3 P.C. 465 at p. 475.

That Section 151 does not confer any power upon the Court, but that it merely indicates that there is a power to make such orders as may be necessary for the ends of justice or to prevent an abuse of the process of the Court, has been consistently the view of this Court as also of their Lordships of the Privy Council. Their Lordships in the well-known case in Debi Bakhsh Singh v. Habib Shah ('13) 35 All. 331 have clearly laid down:

Quite apart from Section 151, any Court might have rightly considered itself to possess an inherent power to rectify the mistakes which had been inadvertently made.

This Court followed the above principle in Harnand Lal v. Chaturbhuj : AIR1926All212 and in Chaturbhuj v. Harnand Lal : AIR1928All108 . The Full Bench case in Mukund Lal v. Gaya Prasad : AIR1935All599 has placed certain restrictions upon the powers of a superior Court with reference to proceedings pending before a Subordinate Court, but they have not cut down the scope of the section itself. Indeed, they could not, in view of the opinion expressed by their Lordships of the Judicial Committee, do it. They have made themselves clear by saying that

The inherent powers, which can be exercised by a superior Court, are ordinarily such powers as are necessary to exercise in relation to proceedings pending before it.

21. The circumstances of this case do not present any conflict of principles such as existed in the cases in Chaturbhuj v. Harnand Lal : AIR1928All108 and Mukund Lal v. Gaya Prasad : AIR1935All599 . The learned Judge in this case was requested to right a wrong with reference to an application disposed of by him and in proceedings of which he alone had seisin. The next contention is that a stage has been reached when it will not be proper to exercise a discretion under Section 151, Civil P.C. To appreciate this argument, it is necessary to follow the sequence of the events which culminated in the order of 6th March 1943, by which the Collector executed a deed of transfer under Section 16, Debt Redemption Act, and in pursuance of which the delivery of possession of the property has already been made to the decree holders. On 1st March 1943, the Collector fixed the value of the property he wanted to transfer. No notice of this proceeding was given to the judgment-debtor. The debt was found to, be Rs. 33,070-8-8 and the value of the property was fixed at rupees 32,409-1-6. There were two villages concerned, Mauza Sherpur and Mouza Mohitpur. The whole of Sherpur was valued at Rs. 32,409. We do not know the value of Mohitpur. The decree holders felt that the whole of the decree would be satisfied by the transfer of the whole of Sherpur and a part of Mohitpur. But to avoid delay, they agreed to forego part of the decretal amount and agreed to have the transfer of Sherpur only. It is remarkable that all these proceedings were terminated on one day and no notice was given to the judgment-debtor. In a case where the property belonging to certain persons was sold in an auction sale in proceedings in which they were not properly represented, their Lordships held that

as against such persons the decrees and sales purporting to be made would be a nullity and might be disregarded without any proceeding to set them aside: vide Khiarajmal v. Daim ('05) 32 Cal. 296 at page 312.

22. On the above principle, the proceedings of which the applicant had no notice and which were taken behind his back would be 'a nullity.' Assuming for the sake of argument that the want of notice to a judgment-debtor would not mean the invalidation of the proceedings, Section 30, Clause (8), Agriculturists' Relief Act, itself provides that

a decree amended in accordance with the provisions of Sub-section (2) shall be deemed to bear the date of the original decree.

This means that once the prayer under Sections 5 and 30, Agriculturists' Relief Act, has been granted, all the proceedings taken between the date of the original application and the date of the final order granting the amendment, would be rendered null and void. The principle embodied in this section was given full effect by their Lordships of the Privy Council in 1944 A. L. J. 162,23 noticed above. In that case, in pursuance of the compromise decree, a sale deed had been executed and one of the arguments before their Lordships on behalf of the decree-holder was that the execution of the sale deed had changed the position of the parties and, at all events, a stage had been reached when no remedial relief could be granted. Their Lordships disposed of this contention in the following words. Say they at page 167:

It appears that since the hearing in the Chief Court the sale deed has been executed and the creditor has been placed in possession of the property. The appellant must have liberty to apply in the Court of the Civil Judge at Sitapur to redress the situation.

Similar principle was laid down by their Lordships in 27 ALL. 33418 at p. 338, already noticed. On the above principle the effect of the order granting the necessary amendment will be to obliterate the subsequent happenings and to treat them as non est. Some minor objections were also taken by Mr. Gopi Nath Kunzru. The first was that the order under the Agriculturists' Relief Act refusing the prayer under Sections 5 and 30 has the effect of, res judicata. In the first place, there was, as I have already indicated, no final adjudication of the rights of the parties. Besides, there can be no res judicata against a statute of the character of the Agriculturists' Relief Act, vide Shrinath v. Puran Mal ('42) 29 A.I.R. 1942 All. 19. Lastly, it has been contended that the applicant is estopped from making the present application by reason of his conduct in the execution proceedings. Estoppel pre-supposes some change of position on the part of the decree-holder to his detriment. This is not the case here. Assuming that there is some sort of estoppel operating against the applicant, I have already held that there is no res judicata against the plain provisions of the statute in question and if there is no res judicata, there can be no estoppel. I would, therefore, allow this application, set aside the order of the District Judge and send the case back to the Civil Judge through the District Judge for trial according to law on the lines indicated above.

Wali Ullah, J.

23. I concur.

24. We, therefore, allow this application, set aside the order of the learned District Judge and send the case back, through him, to the learned Civil Judge, for trial according to law. The applicant is entitled to his costs of this Court as well as of the Court below.


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