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C.P. Vasantarajan and ors. Vs. Parvathammani Garu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 452 of 1951
Judge
Reported inAIR1954Mad201; (1953)IIMLJ493
ActsCode of Civil Procedure (CPC) , 1908 - Sections 73 and 115
AppellantC.P. Vasantarajan and ors.
RespondentParvathammani Garu and ors.
Appellant AdvocateK. Sundararajan, Adv.
Respondent AdvocateSuryanarayana Rao and ;Ramakrishna Rao, Advs.
DispositionRevision dismissed
Cases ReferredNarayan Sonaji v. Sesharao Vithoba
Excerpt:
- - murlidhar' this, however, does not mean that the high courts cannot interfere in revision at all because where the lower court acts without jurisdiction or declines to exercise jurisdiction or the remedy by suit is so inconvenient as to practically amount to no remedy or is manifestly wrong or the result of the suit if brought would be a definite success, a revision has been held to lie......the judgment-debtor, the zamindar of punganoor, held a decree in his favour for costs in privy council app. no. 46 of 1943 arising from o. s. no. 34 ot 1931 on the file of the sub-court, chittoor against one raja mahadeva royal varu. that decree was attached under order 21, rule 53, c. p. c. in execution of the decree in o. s. no. 63 of 1945 and the final order on that attachment petition is ex. a-1 dated 17-6-1948.in pursuance of that attachment the petitioners executed the privy council decree in e. p. no. 90 of 1949 and the legal representatives of the judgment-debtor deposited the decree amount of rs. 14,389-14-0 on 11-4-1950 into court. one rani parvathamma holds a decree in o. s. no. 60 of 1948 for a sum of nearly a lakh of rupees, against the zamindar of punganoor and.....
Judgment:
ORDER

Ramaswami, J.

1. This is a civil revision petition filed against the order made by the learned Subordinate Judge of Chittoor in E. A. No. 143 of 1950 in E. P. No. 90 of 1949 in O. S. No. 34 of 1931.

2. The facts are: The applicants in E. A. No. 143 of 1950 are the decree-holders in O. S. No. 63 of 1945 for a large amount of Rs. 62,000 against the Zamindar of Punganoor. The judgment-debtor, the zamindar of Punganoor, held a decree in his favour for costs in Privy Council App. No. 46 of 1943 arising from O. S. No. 34 ot 1931 on the file of the Sub-Court, Chittoor against one Raja Mahadeva Royal Varu. That decree was attached under Order 21, Rule 53, C. P. C. in execution of the decree in O. S. No. 63 of 1945 and the final order on that attachment petition is ex. A-1 dated 17-6-1948.

In pursuance of that attachment the petitioners executed the Privy Council decree in E. P. No. 90 of 1949 and the legal representatives of the judgment-debtor deposited the decree amount of Rs. 14,389-14-0 on 11-4-1950 into Court. One Rani Parvathamma holds a decree in O. S. No. 60 of 1948 for a sum of nearly a lakh of rupees, against the Zamindar of Punganoor and she attached the Privy Council decree and the attachment was made absolute on 27-6-1949 and she has also taken out execution in other ways against the Zamindar of Punganoor. There are other money decrees against this Zamindar of Punganoor in O. S. No. 136 of 1946 and O. S. No. 34 of 1930 and the decree-holders therein claimed rateable distribution.

The decree-holders in O. S. No. 63 of 1945 claimed the entire amount on three grounds (a) that it was specifically earmarked for payment towards satisfaction of their decree; (b) that they in terms of their decree hold a charge on the foot that the words 'a charge on the Punganoor estate' in their decree mean moveable and immoveable properties of the Zamindar of Punganoor; and (c) that they are transferees by equitable assignment of the Privy Council decree on the foot of a letter which is said to have been passed by the Zamindar of Punganoor.

3. The learned Subordinate Judge has exhaustively examined these three grounds and came to the conclusion that the decree-holders in O. S. No. 34 of 1931 did not make out either singly or cumulatively these grounds for claiming the entire amount. Therefore he ordered rateable distribution and hence this civil revision petition.

4. A preliminary objection is taken by the learned advocate for the respondents that a wrong order of distribution can be contested in a suit under Clause (2) of Section 73, C. P. C. and that this other remedy being open, the High Court should not interfere in revision in such a case. In regard to this contention two propositions are deducible from the line of decisions on this subject.

The first proposition is that as a remedy by way of a suit is open to the aggrieved party the High Court will not as a general rule interfere in revision in cases arising under Section 73, C. P. C. -- 'Venkataraman v. Mahalingayyan, 9 Mad 508 (A); -- 'Mammad v. Ramchund', 4 Mad L J 87 (B); -- 'Murugappa Chettiar v. Narayanaswami Pillai', 17 Ind Cas 389 (Mad) (C); -- 'Somasundaram Chetti v. Tirunarayana Pillai', AIR 1915 Mad 547 (D); -- 'Subramania Chetti v. Ramaswami Chetti', AIR 1926 Mad 179 (E); -- 'Subramanian v. Sivaswami Chetti', AIR 1928 Mad 362 (F); -- 'Chockalingam v. Muthuswami', AIR 1934 Mad 426(G); -- 'Sheetharammayya v. Rathamma' : AIR1935Mad399 'Sheetharamayya v. Gurunathan', 1931 Mad W N 1012 (I); -- 'Alaganan Chettiar v. Ramanathan Chettiar' : AIR1927Mad1030 'Ramsarandas v. Amarnath', AIR 1935 Lah 971 (K); -- 'Daulat Singh v. Rupnarain', AIR 1932 Lah 96 (L); -- 'Mamchand v. Roshanlal', AIR 1933 Lah 48 (M) and -- 'Bulakhidas v. Murlidhar' .

This, however, does not mean that the High Courts cannot interfere in revision at all because where the lower Court acts without jurisdiction or declines to exercise jurisdiction or the remedy by suit is so inconvenient as to practically amount to no remedy or is manifestly wrong or the result of the suit if brought would be a definite success, a revision has been held to lie. 'Sankaranarayana Ayyar Finn v. Yegna Lakshmi Animal', AIR 1939 Mad 196 (O); --'Viraraghava v. Farasurama', 15 Mad 372 (P); -- 'Sri Krishnadas v. Chandook Chand', 19 Mad L J 307 (Q); -- 'Sundaram v. Mamsa Mavuthar', AIR 1921 Mad 157 (R).

5. But in regard to this second line of decisions we have to bear in mind that their Lordships of the Supreme Court have recently examined the scope of the revisional jurisdiction of the High Courts under Section 115, C. P. C. in -- 'Keshardeo Chamria v. Radhakissen Chamria' : [1953]4SCR136 and have cited and approved the observations of the Privy Council in -- 'Amir Hussan Khan v. Sheo Baksh Singh', 11 Cal 6 (PC) (T); -- 'Balakrishna Udayar v. Vasudeya Aiyar', AIR 1917 PC 71 (U); -- 'Venkatagiri Aiyangar v. Hindu Religious Endowments Board, Madras' and -- 'Joychand Lal v. Kamalahsha Chaudhury' and the observations of Bose J. in -- 'Narayan Sonaji v. Sesharao Vithoba' (X) and laid down that the words 'illegally' and 'material irregularity' do not cover either errors of fact or law and that they do not refer to the decision arrived at but to the manner in which it is reached and that the errors contemplated relate to material defects of procedure and not to errors of either law or fact after the formalities which the law prescribes have been complied with. This decision serves to show to the High Courts the limits of the jurisdiction conferred by Section 115, C. P. C.

6. The facts of the instant case show thatwhat the petitioners are seeking is to entertainan appeal in the guise of a revision. Therefore,on the preliminary point, I hold that a revision of the order under Section 73, C. P. C. in thecircumstances of this case does not lie. Thispetition is therefore dismissed with costs of Rule 4leaving it open to the petitioners to file a regular suit if so advised.


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