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Gurbax Singh Vs. Jai Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous (Main) Appeal No. 87 of 1970
Judge
Reported inILR1971Delhi671
ActsCode of Civil Procedure (CPC), 1908 - Sections 11; Constitution of India - Article 227
AppellantGurbax Singh
RespondentJai Singh and ors.
Advocates: C.P. Wig and; R.N. Wig, Advs
Cases Referred(State of Madhya Pradesh v. Bhailal Bhai and Ors.
Excerpt:
.....- article 227--scope and extent of.; that it is not a mere mistake of law which can be corrected by this urt under article 227 of the constitution. the error must be such as to amount to a mis-carriage of justice and should prick the conscience of the court. article 227 has to be used very sparingly and that too only to keep the subordinate courts within their jurisdiction.; further, (on facts) that as first and second appeals could be filed under civil procedure code, the filing of a petition under article 227 to circumvent the bar of limitation was an abuse of the process of court. - - (6) the respondent sarup singh has opposed the petition and pointed out that it is not maintainable 'firstly because both the impugned orders were subject to a first appeal as well as a second..........the happening of subsequent events can remove the effect of rest judicata. the decree holder sarup singh filed a suit challenging the rights of the alleged mortgagee harbans singh over the amount which was released from attachment on the ground that harbans singh was entitled to recover the compensation payable to the judgment-debtor in view of the mortgage held by harbans singh on the land of the judgment-debtor which had been acquired by the government. though the suit had been dismissed by the trial court it is now said that the decision of the trial court has been set aside by the first appellate court. the learned counsel for the petitioner does not say that a second appeal is filed against this decision by harbans singh. firstly, thereforee, the decision in favor of the.....
Judgment:

V.S. Deshpande, J.

(1) The petitioner Gurbax Singh, his brother Parduman Singh and Respondent No. 1 Jai Singh were partners. In 1956, Jai Singh brought a suit against the petitioner and his brother for dissolution of partnership and accounts. The suit was defended by the petitioner and his brother. A preliminary decree was passed against the petitioner and his brother on 26-8-1957. On 29-4-1959, the suit was dismissed for default. The application for restoration of the suit was dismissed on 20-7-1960.

(2) The petitioner alleges that Jai Singhi filed an appeal against the order refusing to restore the suit. But the notice of the appeal was served on the brother of the petitioner and not on the petitioner himself. Jai Singh and the petitioner's brother colluded to defraud the petitioner and the brother of the petitioner did not inform the petitioner about the receipt of the notice of the appeal. The appeal was allowed and the suit was restored. A final decree for Rs. 7625-25 was passed against the petitioner and his brother on 17-3-1962. The decree-holder Jai Singh assigned the decree to Respondent No. 2 Sarup Singh who filed an application to execute the decree. The petitioner was served with a notice under Order Xxi rule 16 Civil Procedure Code and the executing Court held that Sarup Singh (Respondent No. 2) was entitled to execute the decree against the petitioner.

(3) The petitioner then filed about five applications under section 47 Civil Procedure Code objecting to the execution. An early application was disposed of by Shri Krishan Kant, Sub- Judge, First Class, by an order dated 14-1-1966 at Annexure A to the writ petition. The petitioner has not filed a copy of the application as he ought to have done. I am constrained, thereforee, to rely upon the recitals in the order at Annexure A as to the contents of the petitioner's application. In paragraph 7 of the order, the learned Judge states that the objector had alleged that the decree had been obtained by fraud. The learned Judge complains that the objector had not given the particulars of fraud as required by Order Vi, rule 4 Civil Procedure Code. The plea of fraud was, thereforee, held to have been without any substance. Alternatively, even if it is assumed that the plea of fraud had any substance, the learned Judge held that it could be raised only by way of a suit specifically praying that the decree should be set aside as having been obtained by fraud and that the executing Court was not competent to enquire into such an objection. These two findings became rest judicata against the petitioner by the order dated 14-1-1966 at Annexure A inasmuch as no appeal was filed by the petitioner against it.

(4) The petitioner filed an application under section 47(2), Civil Procedure Code on 5-4-1969 praying that the previous application disposed of by the order dated 14-1-1966 should be treated as a suit. Under Article 59 of the Schedule to the Limitation Act, 1963 the period of limitation for setting aside the decree on the ground of fraud was three years from the date on which the petitioner came to know of the fraud. Admittedly, the petitioner came to know of the assignment of the decree in favor of Sarup Singh by Jai Singh in 1965 and the objections urged by the petitioner were also dismissed on 14-1-1966. The alleged fraud had A come to the knowledge of the petitioner in 1965. The application made on 5-4-1969 was thus on the face of it barred by limitation and could not be entertained. Further, the order dated 14-1-1966 at Annexure A had also held that the plea of fraud was baseless. The application of the petitioner dated 5-4-1969 was, thereforee, dismissed by Shri R. P. Gupta, Sub-Judge, First Class on 8-6-1970 by the order at Annexure C of the writ petition. The petitioner has, thereforee, impugned this order at Annexure C and even joined Shri R. P. Gupta as Respondent No. 3 to this writ petition.

(5) During the execution, the amount of compensation payable to the petitioner in land acquisition proceedings was at first attached but was released by Shri Krishan Kant, Sub-Judge, First Class on 6-5-1966 as per order at Annexure E to the writ petition on the ground that the said compensation was payable to the mortgagee Harbans Singh and not to the petitioner judgment- debtor. The decree-holder Sarup Singh, thereforee, filed a suit for a declaration that the claim of the mortgagee Harbans Singh was not genuine and the amount of compensation belonged to the petitioner judgment-debtor and was liable to be attached. The suit of Sarup Singh was dismissed by the trial Court, but during the argument I was informed by the learned counsel for the respondent Sarup Singh that the appeal against the dismissal had been allowed. This was not contradicted by Shri C. P. Wig, learned counsel for the petitioner. In the meanwhile, the Land Acquisition Collector also made a reference to the Additional District Judge under section 31 of the Land Acquisition Act for the apportionment of the compensation. The amount of compensation was also transferred by the Collector to the Court of the Additional District Judge. In the next execution, thereforee, this amount was again attached by the decree-holder Sarup Singh. The petitioner judgment-debtor objected to the second; attachment on the ground that the previous decision releasing the amount from attachment acted as rest judicata. This contention was negatived by Shri R. P. Gupta, Sub-Judge, First Class on 8-6-1970 at Annexure D of the writ petition on the ground that the amount at the time of the second attachment was not with the Land Acquisition Collector and the nature of the amount sought to be attached was also a different one and so the attachment was not barred by rest judicata. This is the second order impugned by the present petitioner.

(6) The respondent Sarup Singh has opposed the petition and pointed out that It is not maintainable 'firstly because both the impugned orders were subject to a first appeal as well as a second appeal under sections 96 and 100 Civil Procedure Code. As the petitioner has not availed himself of the ordinary remedies, he was not entitled to avail himself or the special remedy under Article 227 of the Constitution. Secondly, the impugned orders disclosed no defect of a Jurisdictional nature. They were also eminently just and proper. Even on merits, thereforee, the petition was liable to be dismissed.

The questions for decision, thereforee, are: (1) Whether the order dated 8-6-1970 at Annexure C should be set aside under Article 227 and (2) Whether the second order of the same date at Annex.ure D should be set aside under Article 227 ?

Question NO. 1: The first order at Annexure C rejects the prayer of the petitioner that the previous objection rejected on 14-1-1966 should be treated as a suit under section 47(2), Civil Procedure Code. This prayer could not have been allowed by the Court inasmuch as a suit for setting aside the decree on the ground of fraud was barred by limitation under Article 59 of the Schedule to the Limitation Act. 1963 when the application dated 5-4-1969 at Annexure B was made to the Court by the petitioner. The present petition under Article 227 amounts to an abuse of the process of the Court. For, the petitioner is thereby trying to circumvent the bar of limitation. He could not have filed either a suit or a writ petition after the expiry of the period of limitation for setting aside the decree on the ground of fraud. He is, thereforee, trying to achieve the same object by purporting to challenge the order at Annexure C which merely refused to consider the same stale objection which had been dismissed on 14-1-1966. it is dear, thereforee, that this order at Annexure C cannot be interfered with under Article 227 of the Constitution. Question NO. 2 : It is true that ordinarily a decision of the executing court that a certain amount is not liable to be attached as belonging to the judgment-debtor in view of the superior rights of the mortgagee over it would become rest judicata between the decree- holder and the judgment-debtor. But the happening of subsequent events can remove the effect of rest judicata. The decree holder Sarup Singh filed a suit challenging the rights of the alleged mortgagee Harbans Singh over the amount which was released from attachment on the ground that Harbans Singh was entitled to recover the compensation payable to the judgment-debtor in view of the mortgage held by Harbans Singh on the land of the judgment-debtor which had been acquired by the Government. Though the suit had been dismissed by the trial Court it is now said that the decision of the trial Court has been set aside by the first appellate Court. The learned counsel for the petitioner does not say that a second appeal is filed against this decision by Harbans Singh. Firstly, thereforee, the decision in favor of the decree-holder is that the rights of Harbans Singh do not prevail over the rights of the judgment-debtor to the payment of the compensation for the acquisition of the land of the judgment-debtor. This would have the effect of making the amount of compensation attachable in the hands of the judgment-debtor by a fresh execution. Secondly, even if Harbans Singh were to file an appeal against the decision of the first appellate Court it cannot be said that the decision of the executing Court releasing the amount from attachment continues to be rest judicata. The impugned order at Annexure D cannot, thereforee, be said to be wrong.

(7) The present petition is filed under Article 227 of the Constitution. It is not a mere mistake of law which can be corrected by this Court under Article 227 of the Constitution. The error must be such as to amount to a mis-carriage of justice and should prick the conscience of the Court. (D. N. Banerji v. P. R. Mukherje 1953, S.C.R. 302) (1). In Nibaran Chandra Bag v. Mahendra Nath Chughu, : AIR1963SC1895 . their Lordships of the Supreme Court referred to their previous decision in Nagendra Nath Bora v. Commissioner, Hills Division, Assamm : [1958]1SCR1240 and observed that the jurisdiction conferred on the High Court by Article 227 was by no means appellate in its nature for correcting errors in the decisions of subordinate courts but is merely a power of superintendence to be used to keep them within bounds of their authority. The order at Annexure D is supportable on two grounds. Firstly, the reason why the amount could not be attached in the hands of the Collector was the primacy of the rights of the mortgagee over the rights of the judgment-debtor to get the compensation. This reason ceased to exist when the decree-holder Sarup Singh succeeded in the first appellate Court in his suit under Order Xxi rule 63 Civil Procedure Code that the mortgagee was not entitled to get the compensation payable to the judgment-debtor. Secondly the first attachment was against the amount in the hands of the Collector while the second attachment was of the amount in the Court of the Additional District Judge to whom a reference under section 31 of the Land Acquisition Act had been made. The executing Court had, thereforee, some reason to think that the circumstances had changed and, thereforee, the order holding the compensation as not being attachable in the hands of the Collector did not act as rest judicata to bar the second attachment of compensation in the hands of the Additional District Judge. Even if the executing Court may be wrong in thinking so, the error was not jurisdictional in nature. At any rate, the success of the decree-holder in disproving the claim of the mortgagee would be sufficient reason for this Court to refuse to interfere with the order at Annexure D now. Both the impugned orders at Annexures C and D were appealable under section 96 of the Civil Procedure Code as decrees and second appeals also could be filed under section 100 Civil Procedure Code. These appeals could be filed by the petitioner as of right. They were the normal remedies available to the petitioner. He has given absolutely no reason why he did not avail of these remedies. The argument of the learned counsel for the petitioner simply was that orders at Annexures C and D were without jurisdiction and he could come up to this Court for a writ of certiorari even if he did not avail himself of the ordinary alternative remedies. Firstly, he has not come up to this Court for a writ of certiorari under Article 226. Secondly, Article 227 has to be used very sparingly and that too only to keep the subordinate courts within their jurisdiction (Waryam Singh v. Amarnath : [1954]1SCR565 ) . Both the orders at Annexures C and D are passed by the executing Court within its jurisdiction. Order at Annexure C was right beyond any doubt and is absolutely unobjectionable. Order at Annexure D may not have been right on the materials before the executing Court. But subsequent events have shown that it was right. The mistake, if any, was not such as should be interfered with under Article 227 of the Constitution. Lastly, the petitioner was bound to seek the ordinary remedy of appeal under the Civil Procedure Code and cannot be allowed to circumvent it by coming to this Court in its extraordinary jurisdiction (State of Madhya Pradesh v. Bhailal Bhai and Ors. : [1964]6SCR261 and Thansingh Nathmal v The Superintendent of Taxes, Dhubri, : [1964]6SCR654 .

(8) The application under Article 227 is, thereforee, dismissed with costs


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