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Dinamani Dass and ors. Vs. Bimbadhar Padhan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revision No. 210 of 1966
Judge
Reported inAIR1969Ori289
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115
AppellantDinamani Dass and ors.
RespondentBimbadhar Padhan and ors.
Appellant AdvocateB.K. Roy, ;P.N. Patnaik and ;B.H. Mohanty, Advs.
Respondent AdvocateR.N. Misra, ;R.C. Patnaik, ;R.K. Mohanty and ;P.K. Sengupta, Advs.
DispositionRevision dismissed
Excerpt:
.....decree-holders was dismissed but there was a direction that the preliminary decree as well as the final decree were to be amended. ray for the defendants-petitioners raises some interesting arguments. section 115 of the code of civil proce-dure runs thus--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 (c) 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'.it is to be noted that one important limitation has been put..........of such payment the preliminary decree directed that the plaintiffs were entitled to apply for a final decree that the defendants were debarred from redeeming the hypothecated property. this decree was ultimately confirmed in second appeal no. 25 of 1950 on 26-11-51. there were some interim steps taken by the defendants which need not be mentioned. the decree was made final on 18th of november, 1953. on 22nd february 1956 the plaintiffs decree-holders filed execution case no. 59 of 1956 for delivery of possession of the mortgaged property. an objection under section 47, c. p. c. was filed by the judgment-debtors that both the preliminary and final decrees were not drawn in proper form and that there was no direction in the final decree for delivery of possession. the objection was.....
Judgment:
ORDER

G.K. Misra, J.

1. On 17th of March, 1949 a preliminary decree for foreclosure was passed directing the defendants to pay Rs. 1220 with interest at the rate of 9 per cent from the date of the suit bond together with an additional sum of Rs. 80 within a period of six months from the date of the preliminary decree. In default of such payment the preliminary decree directed that the plaintiffs were entitled to apply for a final decree that the defendants were debarred from redeeming the hypothecated property. This decree was ultimately confirmed in second appeal No. 25 of 1950 on 26-11-51. There were some interim steps taken by the defendants which need not be mentioned. The decree was made final on 18th of November, 1953. On 22nd February 1956 the plaintiffs decree-holders filed Execution Case No. 59 of 1956 for delivery of possession of the mortgaged property. An objection under Section 47, C. P. C. was filed by the judgment-debtors that both the preliminary and final decrees were not drawn in proper form and that there was no direction in the final decree for delivery of possession. The objection was dismissed on 19-4-56. In appeal the District Judge upheld the objection and directed to amend the preliminary and final decrees and to draw them up in proper form in the suit itself. The trial court suo motu amended the preliminary decree on 4-12-56 without making any provision for a grace period and without notice to the defendants. He also amended the final decree on 22-12-56 without notice. The decree-holders themselves filed an application for amendment of the preliminary and final decrees. The preliminary decree was amended on 11-5-57 and the final decree on 28-6-57 without notice to the defendants. The plaintiffs levied execution in Execution Case No. 253 of 1957 on 5-8-57. The judgment-debtors again filed their objection. The executing court upheld their objection. An appeal at the instance of the decree-holders was dismissed but there was a direction that the preliminary decree as well as the final decree were to be amended. On 13-12-64 the decree-holders again filed an application for amendment of the preliminary decree. It was amended on 13-9-65 without notice to the defendants. On the objection of the defendants that the amendment was allowed without notice to them and without hearing the matter was heard. On 28-4-66 the Subordinate Judge, Kendrapara passed an order directing fresh drawal of the preliminary and final decrees. Against this order, the civil revision has been filed,

2. Mr. Ray for the defendants-petitioners raises some interesting arguments. He contends that all that were being directed by the court from time to time was for amendment of the preliminary decree and the final decree. In the preliminary decree, a period of grace is to be given and on non-compliance thereof, a final decree is to be passed as directed in the preliminary decree. As the final decree was passed on 18-11-53, a further period of grace cannot be given after it is amended in 1966.

3. For the reasons to be stated here-under, the civil revision is bound to be dismissed and I do not express any opinion on the aforesaid argument of Mr. Ray.

4. It is to be noted that the impugned order was passed on 28-4-66 and in accordance with that order the amended preliminary decree was passed on 12-5-66. The civil revision was filed on 22-7-66. A preliminary objection was accordingly raised by Mr. Misra that when the civil revision was filed after the preliminary decree was passed, it is not maintainable.

Section 115 of the Code of Civil Proce-dure runs thus--

'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

(c) 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'.

It is to be noted that one important limitation has been put on the powers of the High Court under Section 115 if an appeal lies to the High Court. Doubtless, so far the impugned order dated 28-4-66 is concerned, no appeal lies and it is only revisable but once the amended preliminary decree was passed on 12-5-66 on the basis of the impugned order, a second appeal lies to the High Court after the first appeal is disposed of by the District Judge. It is now well settled that the expression, 'in which no appeal lies thereto' takes within its sweep both the first appeal as, well as the second appeal. A second appeal lies to the High Court from the amended preliminary decree. The High Court should not, therefore, exercise its revisional powers under Section 115, C. P, C.

There is another hurdle on the part of the judgment-debtors. It is well settled that the exercise of powers under Section 115 is not as a matter of right. It is discretionary with the High Court as the word used is 'may'. Even where the Court acts contrary to law on a question which impinges on the question of jurisdiction the High Court is not bound to interfere if the conduct and the act of the petitioner do not arouse its conscience. In this case the decree was originally passed in 1949. The defendants-judgment-debtors have not come forward to make any payment in satisfaction of the decree and have been taking objection after object-Ion to the execution. It may be that their objections are sound in law. This is a matter which is neither here nor there and on which I have already said not to express any opinion. But when it comes to the question of arousing conscience of the Court for interference in civil revision, different considerations altogether arise when no appeal was filed. On this ground also, this is not a fit case for interference.

5. For the aforesaid reasons, I decline to interfere in civil revision which is accordingly dismissed but in the circumstances, the parties to bear their own costs.


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