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Kalwant Kaur Vs. Hazari Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 126 of 1967
Judge
Reported inILR1973Delhi88
ActsLimitation Act, 1963 - Sections 120; Code of Civil Procedure (CPC), 1908 - Sections 117 and 141
AppellantKalwant Kaur
RespondentHazari Lal and anr.
Advocates: H.S. Dhir and; Gaja Nand, Advs
Cases Referred and Smt. Asho Devi v. Dukhi Sao and
Excerpt:
.....order 22 of the code to revision also.b) the case dealt with the scope of section 141 of the civil procedure code, 1908, to revision - it was held that section 141 of the code did not apply to revision - - (4) section 115 of the code of civil procedure providing for revision by the high court, reads as under -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...........1967, c.m. 1514-j/67 was filed under order 22 rules 2 and 3 read with section 151 of the code of civil procedure for bringing on record the legal representatives of the deceased. it was urged that proceedings being not an appeal but in revision, order 22 did not apply and there was no prescribed period of limitation for such an application. (2) safeer, j., before whom the matter came up, has referred the following question for decision by a larger bench :- 'is the revisional jurisdiction given by section 115 of the civil procedure code a part and parcel in its true nature of the appellate jurisdiction provided by the code and are the provisions in order 22 of the code applicable to revision petitions in view of rules 11 and 12 in the code and whether the provisions in the limitation.....
Judgment:

S.N. Shankar, J.

(1) During the pendency of civil revision 126 of 1967 Hazari Lal, respondent died on August 1, 1967. On December 4, 1967, C.M. 1514-J/67 was filed under Order 22 rules 2 and 3 read with section 151 of the Code of Civil Procedure for bringing on record the legal representatives of the deceased. It was urged that proceedings being not an appeal but in revision, Order 22 did not apply and there was no prescribed period of limitation for such an application.

(2) Safeer, J., before whom the matter came up, has referred the following question for decision by a larger bench :-

'IS the revisional jurisdiction given by section 115 of the Civil Procedure Code a part and parcel in its true nature of the appellate jurisdiction provided by the Code and are the provisions in Order 22 of the Code applicable to revision petitions in view of rules 11 and 12 in the Code and whether the provisions in the Limitation Act are also attracted to civil revision petitions where applications are preferred for impleading the legal representatives of a deceased party ?'

(3) We have heard Shri H. S. Dhir for the applicant and Shri Gaja Nand for the respondent.

(4) Section 115 of the Code of Civil Procedure providing for revision by the High Court, reads as under -

'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.'

(5) These revisional powers can be exercised by the High Court suo-motu and can also be invoked by an aggrieved party by means of an application. The case in hand falls in the latter category and the question referred to us has been examined in this background with reference to the provisions of the Limitation Act, 1963 (hereafter called 'the 1963 Act').

(6) The 1963 Act has repealed Indian Limitation Act, 1908 hereafter referred to as 'the 1908 Act'. The repealed Act divided the Schedule annexed to it prescribing periods of limitation, into three divisions. The first division prescribed periods of limitation for institution of suits. The second division dealt with appeals and the third division prescribed limitation for filing of applications. No period for filing an application for revision was prescribed in the Schedule to 1908 Act. The result was that it was open in law to an aggrieved party to file revision without being confronted with the bar of limitation. The courts, however, in exercise of their discretion, conferred by section 115, refused to entertain an application for revision if it was belated or where the party was found to be guilty of latches or delay. The position under the 1963 Act is now different. Like the repealed Act, this Act also contains a Schedule prescribing the periods of limitation. The first division of the Schedule to this Act also prescribes period of limitation for filing of suits, the second division prescribes periods for appeals and the third division for applications. Articles 122 and 131 appear in the third division and they specifically refer to revisions and prescribe periods of limitation in the following terms:-

Art. 122. ____________________________________________________________________________ Description of application. Period of Time from which period limitation begins to run. ____________________________________________________________________________ To restore a suit or appeal or Thirty days. The date of dismissal. application for review or revision dismissed for default of appearance or for want of prosecution or for failure to pay costs of service of process or to furnish security for costs. Art. 131. To any court for the exercise of Ninety days. The date of decree of the its powers revision under or order or sentence sought to be the Code of Civil Procedure, 1908 revised. or the Code of Criminal Procedure, 1898 ____________________________________________________________________________

(7) Unlike the 1908 Act, the 1963 Act thus in terms regulates the rights of an aggrieved party in revision. The two Articles referred to above, however, relate only to an application to restore a revision dismissed on any one of the grounds mentioned in Article 122 and to the filing of the revision. They do not provide limitation for the filing of an application to implead legal representatives of a deceased party. Article 120 of the Act, however, provides for applications for impleading of legal representatives. It reads as under :-

Art. 120 ____________________________________________________________________________ Description of application. Period of Time from which Period limitation begins to run. ____________________________________________________________________________ Under the Code of Civil Ninety days. The date of death Procedure, 1908, to have the of the plaintiff, appelegal representative of appellant, defendant or deceased plaintiff or appellant respondent as the or of a deceased defendant or case may be. respondent made a party. ____________________________________________________________________________

The question, thereforee, that arises is whether this Article applies to the application of impleading legal representatives in case of revision, The provisions analogous to this Article, in the 1908 Act were articles 176 and 177. They read as under:-

Art. 176. ____________________________________________________________________________ Description of application Period of Time from which period limitation begins to run. ____________________________________________________________________________ Under the same Code to have Ninety days. The date of the death the legal representative of of the deceased a deceased plaintiff or of plaintiff or appellant. a deceased appellant made a party. Art. 177. Under the same Code to have Ninety days. The date of the death the legal representative of of the deceased a deceased defendant or defendant or respondent of a deceased respondent made a Party. ____________________________________________________________________________

Article 120 in the present Act has simply combined these two Articles of the 1908 Act, without anything more, to indicate that the Legislature in the present Act intended to add to their field of operation as indicated by the plain meanings of the words as used. On the contrary the words 'Under the Code of Civil Procedure' in the opening part of this Article incorporating the expression 'under the same' previously used in Articles 176 and 177, specifically limits the field of its operation to applications under the Code alone. The only provision in the Code for such applications is Order 22. It has repeatedly been held that this Order does not apply to revisions principally on two grounds. Firstly, because while the Order talks of suits, rule 11 in the Order specifically makes it applicable to appeals but not to revisions and secondly, because Section 141 of the Code of Civil Procedure did not have the effect to make this Order applicable to appeals. In Jowala Singh Prem Singh and others v. Malkan Nasirpur and others it was observed :-

'.................................ORDINARILYthe provisions of O. 22, Civil Procedure Code, govern the case of abatement during the pendency of the suit. This principle has been extended expressly by Rs. 11 of O. 22 to the case of appeals but there is no mention of its applicability to revisions.'

'THIS is a case in which the maxim inclusion unius est exclusio alterius should apply, and I think that by restricting the application of the rule of abatement expressly to suits and appeals, the intention of the legislature was to exclude from its purview cases arising from proceedings in revision. Art. 176, Limitation Act, which provides a period of limitation for making the legal representatives a party, refers to legal representatives 'of a deceased plaintiff or of a deceased appellant'.

(8) In case Babulal and another v. Mannilal the argument that Order 22 applied to revisions because of section 141 of the Code was repelled. The Bench held that section 141 of the Code of Civil Procedure applied only to proceedings of original nature and consequently Article 176 of 1908 Act did not apply to revision applications. In agreement with a similar view expressed by a full bench of the Lahore High Court in Mohd. Sadat All Khan v. The Administrator, Corporation of City of Lahore A.I.R. 1949 Lah 186 and approving the decision of the full bench in Bahulal's case (supra); the Punjab High Court in Ram Saran Dass Tara Chand v. Ram Richpal L. Manna Lal and another came to the same conclusion. The question also come up before the Sind High Court in Naoomal Tourmal v. Tarachand Sobhraj and another A.I.R. 1933 Sind 200 . The division bench of this Court following an earlier decision of the Court in Baksho and another v. Piaro and others A.I.R. 1920 Sind 120 on the same principle held that provisions of Order 22 about abatement of suits and appeals did not apply to applications for revisions. The Madhya Bharat High Court in Basantibai v. Vishnukumar A.I.R. 1956 Mad 125 took the same view. A division Bench of the Madras High Court in Manickan and others v. Mr. R. M. Ramanathan Chettiar and others A.I.R. 1949 Mad 435 distinguishing an earlier decision of the Court in Basawanjanayulu v. Ramalingayya : AIR1938Mad115 held that question of abatement under the Code did not arise but for the combined application of the provisions of Order 22, rules 3 and 4 and the material Articles of the Limitation Act, and as neither Order 22 of the Code, nor the Limitation Act (i.e. 1908 Act) applied to civil revision petitions there could be no question of abatement of such petitions. Reference may also be made to Venkat Narsimhan Reddy v. Konda Reddy A.I.R. 1951 Hyd 55, Mt. Tarif Begain and another v. S. Razinddin A.I.R. 1945 Oud 219 and Fatta and others v. Dillu where the same view was taken by the courts. This question also arose before the Allahabad High Court in Commissioner of Income-tax. U.P. and C.P. and Berar. Lucknow v. /. D. Varshani : AIR1953All414 . This was a case of a reference under the Income Tax Act to the Court. On an application under section 66(1) of Income-tax Act. 1922, made by the Commissioner of Income-tax, the Appellate Income-tax Tribunal, Allahabad referred the question of law for the decision of the Court. During the pendency of the reference the respondent assessed died on December 10, 1948. The reference came up for hearing on September 13, 1949 when counsel of the deceased assessed informed the Court about the death of the assessed. The Court adjourned the matter and directed the Commissioner of Income-tax to make an application within one month giving the names of the legal representatives. This was not done The matter came up before the Court again on July 26, 1950. The Court granted further three weeks time to make the application for bringing the heirs of the deceased on the record. The rules of the Court did not provide that the party which applied for a reference should take steps to have notices issued to the opposite party after the reference was made. On August 11, 1950, the Commissioner of Income-tax made an application giving the names of the legal representatives of the deceased assessed and prayed that the notices be issued to them and they be brought on the record. It was urged by the opposite side that the legal representatives having not been brought on record within the prescribed period for application under Order 22 the reference had abated. The argument was repelled by the Court and it was held that the reference could not abate as Order 22 did not apply. It is, thereforee, clear beyond doubt that an application for bringing on record the legal representatives of a deceased respondent in a revision will not be an application 'under the Code of Civil Procedure' and, thereforee. Article 120 will not apply. This Court in Abdul Khalid v. Abdul Hamid (C.M. 1286-J of 1968 in C.R. 80-D of 1962) decided by Rangarajan, J., has taken the same view and we are in respectful agreement with it.

(9) Shri Gaja Nand, appearing on behalf of the respondent urged that the expression appeal is nowhere defined in the Code of Civil Procedure and whenever, thereforee, a party invoked the appellate jurisdiction of the High Court to set-aside a decision of the subordinate court, as in case of a revision, the proceedings were in the nature of appeal within the ordinary acceptation of the term so that the petitioner in revision would be an appellant within the meaning of Article 122 of 1963 Act and this. provision would in terms apply. In support of this submission he placed reliance on the observations of the Privy Council in Nagendra Nath Dey and another v. Suresh Chandra Dey and others and of the Supreme Court in Shankar Ramchandra Abhyankar v. Krishnaji Dattatrya Bapat A.I.R. 1932 S.C. 1. In these two cases the question was not considered in the context of the present controversy. It may be true that in invoking the revisional jurisdiction of the High Court the aggrieved party may be asking the court to exercise its appellate powers but the concept of appeal and revision in the Code of Civil Procedure are wholly different. The nature of the jurisdiction exercised by the High Court does not place the two proceedings at par to justify the assumption that an appeal is same as a revision. The two remedies are separate and distinct in the scheme of the Code. In Naoomal Tourmal v. Tara Chand Sobhraj A.I.R. 1933 Sind 200 the Division Bench, adverting to the nature of appeal and revision said:-

'THERE is an analogy between a revision application and an appeal but the two are not identical. In a suit or an appeal the points to be decided ordinarily are those on which the parties are at variance. A revision application stands on a different footing. It is a matter between a higher court and a lower Court: in fact revisional powers may in certain cases be exercised without an appeal or an application by any of the parties concerned.'

In Basantibai v. Vishnukumar A.I.R. 1956 Mad 125) the Court said:-

'A revision is necessarily different from an appeal. There is a mistake in thinking that the two are identical. The order in revision is of its nature an essential act of the Court. In suit appeal the points to be decided ordinarily are those on which the parties are at variance. The revision stands on different footing.'

(10) Further, it will also be seen that while ordinarily an appeal is continuation of a suit this is not true in case of a revision. (See Ram Swan Das Tara Chand v. Ram Richpal ). Appeal can be filed as of right but revision is a discretionary remedy depending on the facts of the case. The scope of interference by the High Court in the two proceedings is also not the same. Besides, rule 11 of Order 22 making the Order applicable to appeals does not provide for its application to revision as already discussed. For all these reasons, it is not possible to equate revision with appeal to attract Article 120 of 1963 Act to revisions.

(11) Shri Gaja Nand then urged that the conclusion in the above cited cases that Order 22 did not apply to revisions was based on the view that section 141 of the Code of Civil Procedure was not attracted to proceedings which were not original: This view, the learned counsel said, was erroneous in face of the later pronouncement of the Supreme Court in Ram Chandra Aggarwal and other v. The State of Uttar Pradesh and another : 1966CriLJ1514 . In this case the Supreme Court, after referring to an earlier decision of the Court in Munshi Ram v. Banwari Lal : AIR1962SC903 ' observed that in Munshiram's case the Court had acted upon the view that:

'.........THEexpression 'civil proceeding' in S. 141 is not necessarily confined to an original proceeding like a suit or an application for appointment of a guardian etc., but that it applies also to a proceeding which is not an original proceeding.'

(12) The learned counsel placed reliance on the extracted observation and maintained that Section 141 in view of these observations applied to proceedings which were not original proceedings and as such applied to revisions so that Order 22 was fully attracted to such proceedings. The submission cannot be accepted. No case has been brought to our notice in which the Supreme Court has held that section 141 applied to proceeding in appeal or revision and the observations relied upon did not lay down any law to the contrary as would be clear presently. Before dealing with this observation, let us see what the Supreme Court has laid down in relation to section 141 and the scope of its applicability. In Dokku Bhushayya v Katragaddar Ramakrishnayyar and others : [1963]2SCR499 Subarao, J., speaking for the majority, after noticing the view taken by the privy Council in Thakur Prasad v. Sheikh Fakir-Ullah 2nd 17 All. 106 (PC) said:-

'THIS view has ever since been followed. We have already held that the application by the judgment-debtor to set aside the sale is a proceeding in execution and, thereforee, S. 141 of the Code will not apply for two reasons, namely, (1) as execution proceedings were continuation of suit within the meaning of Order Xxxii, rule 7, of the Code and as the Code provided specifically for suits, S. 141 could not be. invoked; and (2) as we have held, an application by a judgment-debtor to set aside a sale is a proceeding in execution and thereforee S. 141, which applies only to original proceedings, does not apply to such proceedings.'

(13) The Supreme Court thus has unambiguously approved the view that section 141 applied only to original proceedings.

(14) The observations extracted above and relied upon by the learned counsel in Ram Chandra Aggarwal's case did not lay down a law to the contrary. As stated in the judgment itself, the observations were in relation to the earlier decision in Munshi Ram's case. In Munshi Ram's case all that the Court had held was that in a case when an award was filed in court the powers of the court were indicated by the Arbitration Act itself and were limited to the acceptance of the award if there was no objection to it and to pass a decree in accordance therewith or to supersede, revoke or modify it or remit it for further consideration as provided in the Arbitration Act, but this did not disable the parties from terminating their dispute in a different way so that if the parties were dissatisfied with the award and wanted to substitute it by a compromise and where the award was not thrown overboard but modified in its operation, the award, in so far as it was not altered, still remained operative and continued to bind the parties and the court had the power and jurisdiction to record such an agreement of the parties to make it a part of the decree by including it either in the operative portion or in the Schedule of the decree as indicated by the Privy Council in Hemanta Kumari Debi's case A.I.R. 1919 P.C. 79. Referring to this power to record such an agreement and to make it a part of the decree, it was held that this power flowed from the application of the Code of Civil Procedure by reason of section 41 of the Arbitration Act and also by section 141 of the Code of Civil Procedure. In other words all that the Supreme Court had held in Munshi Ram's case was that even though proceedings initiated by reference to arbitration, which had already culminated in the award, and in that sense were not original proceedings, still, if the award was filed in Court under the Arbitration Act, Section 141 would be applicable to proceedings in that court so that the court where the award was filed would have the jurisdiction to record a compromise arrived at between the parties in terms indicated in the judgment. Section 141 was thus held to be attracted (even though the proceedings before the court were not original) because the court where the award was filed was not a court of appeal or revision. The proceedings before the Court in such a case were in pari materia with the suit. It is in this context that after referring to Munshi Ram's case in the extracted observation it was observed that section 141 applied 'also to proceedings which were not original proceedings'. These observations in this context cannot be availed of in support of the proposition that the Supreme Court ruled that section 141 of the Code applied to proceedings which were not original proceedings and was, thereforee, attracted to appeals and revisions also. They do not, thereforee, help the respondent.

(15) Shri Gaja Nand then urged that it would be inequitable and confusing to hold that Order 22 did not apply to revisions when indisputably it was open to the court to convert a revision into an appeal and vice versa. The learned counsel also referred to section 146 of the Code of Civil Procedure which confers a right to the proceedings being continued by or against the representatives on the death of a deceased party. He also pointed out that the result of a conclusion that Article 120 did not apply to revisions will be to delay the disposal of revisions and encourage dilatory tactics on the part of those petitioners who after filing the revision had obtained stay of proceedings in courts below. These considerations of expediency, we are afraid, do not enlarge the jurisdiction of the court to justify an interpretation of the law in a manner other than as laid down by the Legislature. The submission that a dishonest litigant may resort to dilatory tactics and may not file an application for impleading the legal representatives of a deceased party to the revision is not groundless but the remedy for this lacuna does not lie with the court.

(16) Lastly, the learned counsel referred to section 117 of the Code of Civil Procedure and contended that provisions of the Code. save as provided in Part Ix and Part X of the Code, applied to the High Courts and because Order 22 was not one of the provisions saved by the section, the Order applied to trie High Courts both in appeals as well as in revisions irrespective of section 141. This interpretation of S. 117 by the learned counsel is patently not tenable. If section 117 was intended to make the Code applicable enbloc to the High Court there would have been no separate provisions in the Code for appeals. The specific provision of rule 11 in Order 22 in particular providing that in the application of this Order to appeals, so far as may be, the word 'plaintiff' shall be held to include an 'appellant' and the 'defendant' a 'respondent' and the word 'suit' and 'appeal'. would also have been wholly redundant. The obvious purpose and meaning of section 117 is to apply the Code to the High Courts, save as provided in Part Ix and Part X of the Code, to the extent the provisions are applicable to the High Court. For reasons we have A set out above, the courts have consistently held that the provisions of Order 22 though applicable to High Courts in cases of appeals is not attracted to revision. Section 117 in such a situation will not have the effect to enlarge the field of operation of S. 141 to attract Order 22 to revisions also. Our attention was drawn to Jwala Prasad v. Jwala Bank Ltd. : AIR1961All381 and Smt. Asho Devi v. Dukhi Sao and others : AIR1965Pat472 . In the Allahabad case by virtue of section 117 section 114 of the Code was held to be applicable to proceedings taken by the High Court in exercise of its appellate jurisdiction so that the High Court subject to the conditions and limitations prescribed in Order 47 was competent to review its judgment. Similarly, in the Patna case Sections 100 and 101 of the Code were held to be attracted in the case of Letters Patent Appeal before the High Court. There is nothing either in section 114 or the provisions permitting review which were held to apply to the High Court by the Allahabad High Court nor in sections 100 and 101 of the Code of Civil Procedure, which were found to be attracted to Letters Patent Appeals by Patna High Court, which excluded their application to the High Court. These provisions, thereforee, could be held to apply to High Courts by reason of section 117 of the Code of Civil Procedure. The cited cases, thereforee, do not support the contention of the learned counsel that section 117 made the Code as a whole including section 141 applicable to High Courts.

(17) An argument was also raised that by virtue of section 141, the Code of Civil Procedure and its provisions, applied to writ proceedings. Writ proceedings may well be said to be original but in no case can they be equated with revision proceedings. We do not consider it necessary for this reason in this case to go into the controversy-whether the provisions of Civil Procedure Code do or do not apply to writ proceedings.

(18) For reasons aforesaid the answer to the question referred to us is that provisions of Order 22 of the Code of Civil Procedure do not apply to proceedings in revision and Article 120 of the Limitation Act, 1963, also does not apply to such proceedings because proceedings in revision are not original proceedings or proceedings in pari materia with a suit.


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