Skip to content


Bingi Kurmayya and ors. Vs. Woona Bhimayya Subudhi and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtOrissa High Court
Decided On
Case NumberSecond Appeal Nos. 297 and 298 of 1968
Judge
Reported inAIR1973Ori144; 39(1973)CLT156
ActsLimitation Act, 1908 - Schedule - Article 47; Limitation Act, 1963 - Schedule - Article 65; Code of Criminal Procedure (CrPC) - Sections 145
AppellantBingi Kurmayya and ors.
RespondentWoona Bhimayya Subudhi and ors.
Appellant AdvocateN.V. Ramdas, Adv.
Respondent AdvocateR.C. Patnaik, Adv. in S.A. No. 297 of 1968, ;R.C. Patnaik and ;M. Hazra, Advs. in S.A. No. 298 of 1968
DispositionAppeal dismissed
Cases ReferredShankar Ramchandra Abhvankar v. Krishnaji Dattatraya Bapat
Excerpt:
.....legislature while providing a remedy by way of revision to an unsuccessful party in a proceeding under section 145 of the code could not have contemplated that in some cases where, if the revision application is dismissed, he would be left without any further remedy......order the reason behind the decisions is that by virtue of sub-section (3) of section 435 of the code the high court had no power under section 435 read with section 439 of the code to interfere with an order under section 145 and that any order passed by them in exercise of their power of superintendence under the government of india act would not come within the purview of article 47 of the act. in air 1918 pat 504 which is practically based on (1908) 12 cal wn 840, the learned judge said:--'the order of the magistrate is itself the final order. it is not subject to appeal. it can only be set aside under the power of superintendence vested in the high court if made without jurisdiction. the decision of the high court confirming the jurisdiction of the court passing the order cannot.....
Judgment:

Patra, J.

1. These appeals raise an interesting question of law as to the correct interpretation of the expression 'final order' occurring in column 3 of Article 47 of the Indian Limitation Act. 1908 (hereinafter referred to as the Act). One Woona Bhimayya Subudhi instituted a suit in the Court of the Munsif Berhampur for recovery of possession of 11.95 acres of land and for damages. He claimed title thereto on the basis of a purchase in Court auction in 1947. As the defendants created trouble in respect of his possession of the properties, a proceeding under Section 145 of the Code of Criminal Procedure (hereinafter referred to as the Code) was initiated in M. C. No. 32 of 1950 in the Court of the Magistrate. The Magistrate by his order dated 30-8-1952 declared the possession of the defendants. Against that order, the plaintiff filed a revision in this Court. The revision petition was admitted and heard and was dismissed on 6-12-1954 (Ext. 5). The plaintiff thereupon instituted the suit giving rise to these appeals on 6-12-1957. The defendants resisted the plaintiff's claim on merits and also on the ground that the suit was barred by limitation having been filed more than three years after the date of the Magistrate's order. There is no dispute that the suit having been filed in 1957, Article 47 of the Act which was then in force applied. But being of the view that in this case the final order is the date on which the High Court disposed of the revision, the trial Court held that the suit was within time. On the merits of the case, however, he found that the plaintiff has been able to prove his title only in respect of 6.62 acres of land and passed a decree in part in his favour in respect of the same dismissing his claim in respect of the remaining 5.33 acres of land. The first appellate Court dismissed Title Appeal No. 3 of 1964 filed by the defendants and allowed title appeal No. 4 of 1964 filed by the plaintiff. Aggrieved by these decisions, the defendants have filed these two second appeals Nos. 297 and 298 of 1968.

2. These two appeals came up for hearing in the first instance before our learned brother S.K. Ray. J. The only point pressed before him by the learned Advocate for the appellants was the one relating to limitation. But having regard to the conflict of views between the Madras and Patna High Courts on this question and in the absence of any authority of this Court and in view of the importance of the question he has referred the question for decision by a Division Bench. This is how the matter has come up before us for disposal.

3. There is no dispute between the parties that Article 47 of Schedule I of the Act applies to this case. That Article runs thus:

'47. By any person bound by an order respecting the possessionof immoveable property madeunder the Code of Criminal Procedure. 1898. (V of 1898) or theMamlatdar's Courts Act. 1906(Bom. II of 1906). or by any one claiming under such person, torecover the property comprised in such order.

Three years

The date of the final order in the case.'

4. The short question for consideration is whether the expression 'final order' occurring in Col. 3 above has reference to the date when the final order was passed by the Magistrate in a proceeding under Section 145 of the Code or in the event of there being a revision to the High Court the date when the High Court passed the order in revision. To appreciate some of the decisions cited at the Bar on this question it would be necessary to refer to the fact that Section 435 of the Code as it stood before the amendment of 1923, contained Sub-section (3) which provided that proceeding under Chapter XII (which included Section 145. Criminal P. C.) were not proceedings within the meaning of that section (Section 435). Section 435 of the Code authorises the High Court or any Sessions Judge to call for and examine the record of any proceeding before any inferior Criminal Court for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed. By reason of Sub-section (3), therefore, orders made in proceedings under Section 435 of the Code were not within the ambit of Section 435 and could not therefore, form the subject-matter of any revision before the High Court. By the Amendment Act of 1923, Sub-section (3) of Section 435 was altogether omitted so that an order under Section 435 of the Code as it now stands, is subject to revision. Doubtless even before the aforesaid amendment was made in 1923, the High Court in exercise of its general power of superintendence under the Government of India Act, 1935, could call for the record of any inferior Criminal Court and pass appropriate orders thereon. But any such order passed by the High Court in exercise of its general power of superintendence wouldnot be an order made under the Code of Criminal Procedure as required in col. 1 of Article 47 of the Act. It is in this context that the decision cited in 12 Cal WN 840. (Jagannath Marwari v. Ondal Coal Co. Ltd.) and AIR 1918 Pat 504, (Lachman Singh v. Dilian Ali), have to be considered. Although in both these cases the Courts held that under Article 47 of the Act, the period of limitation begins to run from the date of the final order of the Magistrate under Section 145 of the Code and not from the date of refusal of the High Court to interfere with the order the reason behind the decisions is that by virtue of Sub-section (3) of Section 435 of the Code the High Court had no power under Section 435 read with Section 439 of the Code to interfere with an order under Section 145 and that any order passed by them in exercise of their power of superintendence under the Government of India Act would not come within the purview of Article 47 of the Act. In AIR 1918 Pat 504 which is practically based on (1908) 12 Cal WN 840, the learned Judge said:--

'The order of the Magistrate is itself the final order. It is not subject to appeal. It can only be set aside under the power of superintendence vested in the High Court if made without jurisdiction. The decision of the High Court confirming the jurisdiction of the Court passing the order cannot affect the date from which it came into force. We are of opinion that the suit was barred by Article 47 of Schedule I to the Limitation Act.'

5. A case which has the nearest approach to the case before us is a Bench decision of the Patna High Court in Rampal Singh v. Mansukh Rai Khemka, AIR 1941 Pat 372. The suit which gave rise to the appeal before their Lordships was one for recovery of possession of certain lands which previously formed the subject-matter of a proceeding under Section 145 of the Code before a Magistrate who on 4th August, 1932 declared the possession of defendants in respect thereof. The plaintiff thereupon filed an application for revision before the Sessions Judge who made a reference to the High Court on 29-9-1932. But the High Court by its order dated 11-1-1932 discharged the reference. The suit was brought on 13th November. 1935 (9th to 12th November, 1935 being holidays). The question arose whether the suit was barred by limitation having been filed more than three years after the order passed by the Magistrate, but within three years from the date of the disposal of the revision application in the High Court. After noticing the distinction between an appeal and a revision in that, in the case of an appeal the party has a right to be heard, but there is no such right in the case of a revision which is entirely within the discretion of the Court their Lordships observe :

'But where the Court does exercise its power of revision under Section 435 of the Code, the order which is ultimately passed by the High Court under Section 439 of the Code is no less effective than an order passed on appeal. Section 439 itself provides that in revision the High Court may in its discretion exercise any of the powers of an appellate Court. If therefore an order passed by an appellate Court could be regarded as the final order there is no reason why an order passed by the High Court in exercise of its power of revision under Section 439 of the Code could not be equally regarded as the final order. Whether the High Court ultimately interferes in revision or not, its order is none-the-less the final order.'

In this view of the matter, it was held that the suit which was filed within three years of the order passed by the High Court in revision was within time.

6. Mr. Ramdas appearing for the appellants placed considerable reliance on a Bench Decision of the Madras High Court in Mokshagundam Nagabhushanayya v. Pasam Kotayya, AIR 1946 Mad 444. Shorn of details the facts of that case are that in a proceeding under Section 145 of the Code, the Magistrate passed the order on 16-1-1939 against defendants 1 to 5 who were co-owners of the plaintiff who however was not impleaded as a party in the proceeding. Defendants 1 to 5 filed a revision application in High Court against the Magistrate's order. That application was rejected in limine on 15-8-1939. The plaintiff thereafter filed the suit giving rise to the appeal on 26-5-1942 praying that possession be given to him and his co-owners defendants 1 to 5. The trial Court held that so far as defendants 1 to 5 are concerned the suit was out of time. He, therefore, merely gave a decree to the Plaintiff for his share of the property. The decree of the trial Court was confirmed by the Subordinate Judge and also in second appeal. In a Letters Patent Appeal on the question of limitation, the Bench relying on the following dictum of a Division Bench of that High Court in AIR 1916 Mad 883 (Venugopala Mudali v. Venkatasubbiah Chetti) confirmed the view of the Courts below. This is what Sadasiva Aiyar. J. who spoke for the Division Bench had stated in AIR 1916 Mad 883.

'I need not say that where the order on a review petition as distinguished from an appeal petition merely refuses to interfere with the judgment or order sought to be reviewed or where an appeal is not entertained at allthough filed, the original decree or order sought to be reviewed or where an appeal is not entertained at all, though filed, the original decree or order is and continues to be the subsisting and final decree or order. In this respect an order rejecting a review petition stands on a different footing from a decision passed on appeal confirming the lower Court's judgment and dismissing the appeal. If the decision on review or revision does interfere with the original decision the former decision becomes the only subsisting order and stands on the same footing as the decision passed in a competent appeal. It will in that case become the starting point for limitation.'

Following this dictum, the Bench in AIR 1946 Mad 444, held that an order dismissing in limine an application for revision of an order passed under Section 145(6) of the Code, is not a final order within the meaning of Article 47 of the Act. This decision was sufficient to dispose of the case before their Lordships because they were dealing with a case where the revision petition was dismissed in limine. But they proceeded further and held that if the application for revision is accepted and the Magistrate's order is set aside his order is no longer the final order; but until it is set aside or modified, it is. It follows from this decision that even if the High Court in exercise of its revisional powers entertains a revision application against an order of a Magistrate passed under Section 145 of the Code and after hearing it on merits, it dismisses the application, the final order contemplated in Article 47 of the Act would not be the order passed in revision by the High Court but it would be the order passed under Section 145(6) of the Code by the Magistrate. It has to be noted that the decision of the Patna High Court in AIR 1941 Pat 372 was not brought to the notice of the learned Judges who decided AIR 1946 Mad 444 and was consequently not considered by the Bench.

7. Mr. Ramdas brought to our notice a subsequent decision of the Patna High Court in AIR 1951 Pat 325 (Pitambar Chaudhury v. Achoki Chaudhury) and argued that some observations contained in that judgment support his contention. But we find that the facts of that case are clearly distinguishable and do not in any way cast any doubt on the correctness of the view previously expressed by that High Court in AIR 1941 Pat 372. In AIR 1951 Pat 325, after the Magistrate passed the order in a proceeding under Section 145 of the Code against the plaintiff the latter made an application to the Sessions Judge in revision for making a reference to the High Court. But the Sessions Judge dismissed the application and the plaintiff thereafter did not move the High Court in revision. In such circumstances, the Court held that the order of the Magistrate and not of the Sessions Judge is the final order within the meaning of Article 47 of the Act. That is so because the Court of Sessions can only make a reference to the High Court if he were of opinion that the order passed by the learned Magistrate is vitiated by any error of law, but the Sessions Judge is not competent to pass any final orders himself. There can, therefore, be no dispute that the order passed by the Sessions Judge who had no jurisdiction to pass any final order can in no event be deemed to be a final order within the meaning of Article 47 of the Act. This case, therefore affords no assistance to Mr. Ramdas.

8. A single Judge decision of the Calcutta High Court in AIR 1938 Cal 577. (Sm. Meghamala Devi v. Sadav Parhva) is almost on the same lines as in AIR 1916 Mad 883, which it follows. Itt was a suit under Order 21. Rule 103, Civil Procedure Code to which Article 11-A of the Act applied. The learned Judge drew a distinction between an appeal and a revision and while holding that if there is an appeal, the date of final order would be the date on which the appellate Court gives its decision; he was of the view that so far as revision is concerned, if the High Court in exercise of its power under Section 115, Civil P. C. refuses to interfere, it merely amounts to an abstention from exercising jurisdiction and the only final order that remains subsisting is the order passed by the trial Court. It would, however, be otherwise if the High Court interferes in revision with the original decision, in which case, the period of limitation under Article 11-A of the Act would count from the date of decision of the High Court in revision.

9. As pointed out by the Supreme Court in Shankar Ramchandra Abhvankar v. Krishnaji Dattatraya Bapat (AIR 1970 SC 1), the right of appeal is one of entering a superior Court and invoking its aid and interposition to redress the error of the Court below. Two things which are required to constitute appellate jurisdiction, are the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter. When the aid of the High Court is invoked on the revisional side, it is done because it is a superior Court and it can interfere for the purpose of rectifying the error of the Court below. Section 115 of the Code of Civil Procedure and Section 435 read with Section 439 Criminal P. C. only circumscribe the limits of that jurisdiction. But the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. We are not here concerned with a case where the High Court dismissed a revision application in limine without entertaining it. and we are not called upon to decide whether in such a case limitation for the purpose of Article 47 of the Act would count from the date of the final order passed by the Magistrate or the date on which the revision application is dismissed in limine. We are dealing with a case where the High Court in exercise of its powers of revision had entertained the revision application and after hearing it on merits has dismissed it. Although it is a case of not disturbing the order passed by the Magistrate still it appears to us that the final order passed by the Magistrate has been merged in the order passed by the High Court in revision. When, therefore, the only subsisting order in the case is not the order passed by the Magistrate but the order passed by the High Court in which the Magistrate's order is merged limitation for the purpose of Article 47 of the Act should count from the date of the order passed by the High Court. Looked at from another angle, this also appears to be the correct view. An illustration would make it clear. When a Magistrate passes a final order under Section 145. Criminal P. C. and one of the parties is aggrieved by that order, it is open to him to file a revision application in the High Court. If the High Court entertains the application, the party filing the application is entitled to await the decision of the High Court because if his grievance is redressed by the High Court it would no more be necessary for him to file a suit to recover possession of the property. If, in any particular case, the High Court takes more than three years to dispose of the revision application and ultimately by its order rejects it, the aggrieved party would be left without a remedy, if the view propounded in the Madras case referred to above is accepted as correct. The Legislature while providing a remedy by way of revision to an unsuccessful party in a proceeding under Section 145 of the Code could not have contemplated that in some cases where, if the revision application is dismissed, he would be left without any further remedy. Such a contingency can be avoided if thosecases where a revision application is entertained by the High Court the date of its disposal is held to be the starting point of limitation for a suit under Article 47 of the Act. In other words where against an order passed in a proceeding under Section 145 of the Code, the High Court entertains a revision petition the final date of the order for the purpose of Article 47 of the Act is the date on which the High Court passes the order in the revision application. In our opinion the law has been correctly stated in AIR 1941 Pat 372.

10. In the result, both these appeals are dismissed. Having regard, however, to the circumstances of the case, we direct the parties to bear their own costs in this Court.

Panda, J.

11. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //