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Mahadeo Prasad Vs. Khubi Ram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1929All793; 118Ind.Cas.189
AppellantMahadeo Prasad
RespondentKhubi Ram
Excerpt:
- - we are satisfied that the objection of the judgment-debtor should be disposed of after giving him full opportunity to produce all his evidence......in the exercise of jurisdiction which might have prejudiced the judgment-debtor. the judgment-debtor appealed to the district judge who dismissed his appeal stating that it seemed that the judgment-debtor made no attempt to establish his suggestion and did not produce any evidence or ask for time to do so, but he conceded that the house seemed to have been sold for rather a low price. an objection is taken on behalf of the respondent that we have no power to interfere inasmuch as the revision has been filed from an order of the district judge which does not fall under section 115. as the whole record has been sent for we do not see any force in the technical objection that the revision is described as one from the appellate order. nor do we think that the mere fact that the district.....
Judgment:

1. This is a revision by a judgment-debtor arising out of an auction sale. On 19th January 1928, an objection under Order 21, Rule 90 was filed by the judgment-debtor that the decree-holder had dishonestly misled certain bidders by false representation, that fictitious bids were offered and that the property was sold for an inadequate consideration. The learned Munsif took down the evidence of the judgment-debtor on 25th January 1928 and dismissed his objection on the 26th. He did not fix any date for its hearing and issued no notice to the decree-holder and obviously did not allow any opportunity to the judgment-debtor to produce any witnesses in corroboration of his testimony. This in our opinion was a material irregularity in the exercise of jurisdiction which might have prejudiced the judgment-debtor. The judgment-debtor appealed to the District Judge who dismissed his appeal stating that it seemed that the judgment-debtor made no attempt to establish his suggestion and did not produce any evidence or ask for time to do so, but he conceded that the house seemed to have been sold for rather a low price. An objection is taken on behalf of the respondent that we have no power to interfere inasmuch as the revision has been filed from an order of the District Judge which does not fall under Section 115. As the whole record has been sent for we do not see any force in the technical objection that the revision is described as one from the appellate order. Nor do we think that the mere fact that the District Judge declined to interfere in the matter precludes us from curing the irregularity.

2. Section 115, Civil P.C. empowers this High Court to call for the record of any case which has been decided by any subordinate Court if no appeal lies thereto. This obviously includes a trial Court and the appeal referred to therein means an appeal to the High Court. The present case therefore fulfills the conditions required by that section. If therefore a trial Court has acted with material irregularity in the exercise of its jurisdiction or acted illegally the High Court has power to interfere in revision provided that no appeal lies to the High Court. The section does not require that no appeal in the meantime should have been preferred to the Court of the District Judge, or that if preferred it is only the order of the District Judge which can be revised. We are satisfied that the objection of the judgment-debtor should be disposed of after giving him full opportunity to produce all his evidence. We accordingly allow this revision and setting aside the order of the Munsif dated 26th January 1928 send the case back to that Court through the District Judge for disposal according to law. Costs of this Court will abide the event.


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