Skip to content


Custodian of Evacuee Property, New Delhi Vs. Nasir UddIn and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Rev. No. 496-D of 1957
Judge
Reported inAIR1962P& H218
ActsCode of Civil Procedure (CPC), 1908 - Sections 2(2), 96, 100, 104 and 115 - Order 43
AppellantCustodian of Evacuee Property, New Delhi
RespondentNasir UddIn and ors.
Cases ReferredNafar Chandra v. Kali Pada Das
Excerpt:
.....of superintendence under article 227 of the constitution. - 99-15-3. an appeal lay from the order complained of to the district judge. it was the opinion of the full bench that such a petition is 'against the well established principles of procedural law. that a principle so clearly laid down in section 115 can be relegated to a position of a mere rule of practice. and if it lies, revision is clearly barred. , however interesting it may be, cannot lead to the inference that he had reached a conclusion contrary to the view which had been taken by nasim ali, j. (12) a review of these decisions clearly indicates that there is a preponderance of authority in favour of the proposition that the jurisdiction of the high court under section 115 is barred in a case where the order impugned..........was called upon to adjudicate on a matter which fell within the scope of section 47 of the code of civil procedure as the question, whether the leasehold rights could be attached and sold in execution of the decree was one which related to the 'execution, discharge or satisfaction of the decree.' when such a question is determined by an executing court the order passed by it is appealable under section 96 as a decree within the meaning of clause (2) of section 2 of the code of civil procedure.(5) a petition for revision under section 115 of the code of the civil procedure lies in respect of a case.'which has been decided by any court subordinate to such high court and in which no appeal lies thereto.............. ''.it has been contended by the learned counsel for the respondent, who has.....
Judgment:

Shamsher Bahadur, J.

(1) This petition for revision at the instance of the Custodian of Evacuee Property, has been referred to a Full bench for decision as the learned Single Judge (D. K. Mahajan, J.) before whom the matter was placed for disposal, was of the view that there was some conflict of authority on the question of this Court's jurisdiction to entertain it.

(2) In order to appreciate the point in issue the undisputed facts may briefly be set out. In a suit filed by the respondents, Rameshwar Dayal, on the 4th of October, 1947, against Nasir-ud-Din and Khairati an ex parte decree in his favour was passed for a sum of Rs. 1568/-. The judgment-debtors having migrated to Pakistan the Custodian of Evacuee Property objected in execution proceedings to the attachment of plots Nos. 179/22 and 180/22 belonging to them. These objections were upheld on the 25th of January, 1950. The respondent decree-holder thereafter got the lease-hold rights of these plots attached and sold on the 20th of December, 1956. Once again the Custodian raised objections but this time these were dismissed by the executing Court on the 3rd of June, 1957 on the ground that the leasehold rights had not been notified as evacuee property. As a result, this petition for revision was preferred by the Custodian against the order of the executing Court and the memorandum was filed through Mr. Shiv Charan Singh, Advocate, on the 18th of October, 1957. A note was appended to the memorandum that taking into reckoning the time spent in obtaining the copy of the judgment the petition for revision was within time.

(3) On the merits of the case Mahajan, J. felt no difficulty at all and came to the conclusion that the leasehold rights of the plots attached and sold constituted evacuee property. The counsel for the respondent raised a preliminary objection before the learned Singh Judge that the petition for revision was not competent. It is on this question that he thought that there was some conflict of authority and for this reason the case has been referred to a Full Bench.

(4) Plainly, the executing Court was called upon to adjudicate on a matter which fell within the scope of section 47 of the Code of Civil Procedure as the question, whether the leasehold rights could be attached and sold in execution of the decree was one which related to the 'execution, discharge or satisfaction of the decree.' When such a question is determined by an executing Court the order passed by it is appealable under section 96 as a decree within the meaning of clause (2) of section 2 of the Code of Civil Procedure.

(5) A petition for revision under section 115 of the Code of the Civil Procedure lies in respect of a case.

'which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto.............. ''.

It has been contended by the learned counsel for the respondent, who has raised the preliminary objection, that the order of the executing Court being appealable no revision can be entertained. On the other hand the case of the petitioner is that the word 'thereto' can only be construed to mean that the appeal should lie directly to the High Court from the order sought to be impugned. In other words if the appeal lies to a Court other than the High Court a petition for revision would still be competent. There is no dearth of authority on the point that an appeal may lie either directly to the High Court or even as a second appeal from an order of the appellate Court. It seems to us that the revisional jurisdiction of the High Court can be invoked only in case in which no appeal at all lies thereto. It is plain that a case, which can be taken either as first or second appeal to the High Court, is excluded from its revisional jurisdiction under section 115. The words 'in which' cannot and indeed are not intended to restrict to cases where an appeal can be preferred directly to the High Court.

(6) A similar point was decided by a Full Bench of Fazl Ali, C. J., Manohar Lall and Chatterji, JJ. in Ram Vijay Prashad Singh v. Kishnu Singh, AIR 1944 Pat 54 (FB). In that case the decree under execution was a rent decree passed by a munsif in a suit valued at Rs. 99-15-3. An appeal lay from the order complained of to the District Judge. No such appeal was filed and instead a petition for revision was presented to the High Court. It was held that no revision under section 115 of the Code of Civil Procedure could be entertained as the order was appealable. Reference may also be made to another Full Bench decision of the Patna High Court (Meredith, Sinha and Ramaswami, JJ.) in Maqbool Alam Khan v. Mt. Khodaija Begum, AIR 1949 Pat 133 (FB), in which it was taken for granted that where an appeal lay to the District Judge from the order of a Munsif a petition for revision was incompetent.

(7) The next authority relied upon by the counsel for the respondent is a Full Bench decision of the Allahabad High Court (Iqbal Ahmad, C. J., Allsop, Varma, Yorke and Malik, JJ.) in Manmohan Lal v. Raj Kumar Lal, AIR 1946 All 89. The majority consisting of Iqbal Ahmad, C. J. Allsop and Yorke, JJ. held that the word 'appeal: in section 115 of the Code of Civil Procedure is not restricted to a first appeal but also includs a second appeal, and as the second appeal against the appellate order of the District Judge could have been taken to the High Court the revision application against the order granting the decree could not be entertained. Mr. Shvi Charan Singh contends that the view of Malik and Verma, JJ. in the Full Bench decision is to be preferred to that of the majority. It is to be noted that even Malik and Verma, JJ. who took a somewhat different view, emphasized the fact that on the date on which the revision petition was filed, there was no order of the first Court or the appellate Court from which an appeal could be filed to the High Court and for this reason they considered that the revision was competent under section 115 of the Code of Civil Procedure. Chief Justice Iqbal Ahmad at page 93 of the report while upholding the proposition which has just been enunciated, observed thus:

'It has been held in a series of cases that the word 'appeal' in section 115, Civil Procedure Code, is not restricted to a first appeal but also includes a second appeal and, therefore, if a second appeal lies to the High Court from the case sought to be revised, the High Court has no jurisdiction to interfere in revision. I do not desire to encumber my judgment by a detailed reference to these cases which will be found noted at page 1036 of Volume I of Chitaley's Code of Civil Procedure, Edn. 3.'

Since this Full Bench judgment was delivered, further editions of Chitaley's Code of Civil Procedure have been published and in 6th edition of 1957 the question is summarized at page 1568, volume 2. It is stated that

'where, therefore, a first appeal or second appeal lies to the High Court from the case sought to be revised the High Court has no jurisdiction to interfere in revision. Thus, orders and decisions amounting to decrees and which are open to a second appeal to the High Court, cannot be revised under this section.'

(8) In a Full Bench decision of Madras High Court consisting of Rajamannar, C. J., Viswanatha Sastri and Panchapakesa Ayyar, JJ. in Satyanarayanacharyulu v. Ramalingam, AIR 1952 Mad 86 (FB), it was stated that in cases where the proper remedy is only by way of an appeal against the order no revision lies. It was the opinion of the Full Bench that such a petition is 'against the well established principles of procedural law.'

(9) Their Lordships of the Privy Council in N. S. Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras, AIR 1949 PC 156, approved the principle enunciated by the High Court of Calcutta that section 115 of the Code of Civil Procedure was

'intended to authorise the High Courts to interfere and correct gross and palpable errors of subordinate Courts, so as to prevent gross injustice in non-appealable cases.'

Sir John Beamount, who formulated the opinion of the Board, also made reference to the collection of cases in Chitaley and Rao's Code of Civil Procedure, 4th edition on this point. No distinction between first and second appeals was envisaged by the Privy Council and indeed none could be on the plain words of the statute.

(10) The counsel for the petitioner has pointedly drawn our attention to a Division Bench authority of this Court in Sheikh Mohd. Din v. Thakar Singh, (1952) 54 Pun LR 415: (AIR 1952 Punj 428), in which Khosla, J. (now Chief Justice) and Harnam Singh, J, entertained a revision on the ground that the case was not appealable directly to the High Court. It appears at p. 422 (of Pun LR): (at p. 432 of AIR) of this report that the counsel did not advance any argument on the point and it was conceded 'that no appeal lies to this Court and if an appeal lies at all it lay to the Court of the District Judge'. There was no discussion on the matter and the learned Judges relied on an earlier decision of the Allahabad High Court holding the view that if the order by which a party s aggrieved is not appealable to the High Court he can file a petition for its revision. A Single Bench decision of Baguley, J. of the Rangoon High Court in Daw Min Baw v. A. V. P. L. Chettyar Firm, AIR 1933 Rang 64, has further been relied upon in support of the proposition that non-interference by High Court in a case where another remedy lies by way of appeal is simply a rule of practice arising from the optional nature of section 115 which says that High Court may make such order in the case as it thinks fir. We do not find it possible to subscribe to the view adopted by Baguley, J. that a principle so clearly laid down in section 115 can be relegated to a position of a mere rule of practice.

(11) The last case on which reliance has been placed by the counsel for the petitioner is a Division Bench judgment of the Calcutta High Court in Nafar Chandra v. Kali Pada Das, AIR 1940 Cal 257 We do not think that this decision is at all helpful in advancing the case set up for the petitioner. As stated by Nasim Ali, J.:--

'the object of section 115 is to give relief to a person who cannot get relief in High Court under sections 96, 100, 104 or Order 43 of any other statute. The words 'appeal lies thereto' indicate that where a relief can be given by High Court in the exercise of its appellate jurisdiction its revisional jurisdiction under section 115 cannot be invoked'.

Narsing Rau, J., who delivered a separate judgment in this case, made an observation which the learned counsel for the petitioner contends lends weight to the proposition he has put forth. We do not, however, agree with him. Said Narsing Rau, J.:

'Where at the moment the record is called for, the case has reached a stage at which the next appeal, whether first or second, is to the High Court, it is easy enough to say whether an appeal actually lies to the High Court or not; and if it lies, revision is clearly barred. But where a case has not reached that stage and has, say, only reached the stage at which the next appeal is to some Court subordinate to the High Court with a possibility of a second appeal to the High Court at some future date, is revision barred? In other words, are we to interpret the expression 'in which no appeal lies' as if it were equivalent to the expression 'in which no appeal lies or may in future lie'? I hesitate to place so wide a construction upon these words. According to the alternative interpretation, revision is barred only where an appeal, whether first or second, lies immediately to the High Court.'

The learned Judge no doubt expressed some hesitation to give a definite answer and chose to decide the question before him on the broad ground that there was no urgent need for intervention. The question posed by Narsing Rau, J., however interesting it may be, cannot lead to the inference that he had reached a conclusion contrary to the view which had been taken by Nasim Ali, J.

(12) A review of these decisions clearly indicates that there is a preponderance of authority in favour of the proposition that the jurisdiction of the High Court under section 115 is barred in a case where the order impugned can give rise to a first or second appeal before it. The preliminary objection therefore prevailing, this petition for revision is dismissed. We would, however, make no order as to costs.

G.D. Khosla, C.J.

(13) I agree.

J.S. Bedi, J.

(14) I agree.

AF/D.R.R.

(15) Revision petition dismissed.


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