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Nafar Chandra Sardar and ors. Vs. Kali Pada Das - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1940Cal257
AppellantNafar Chandra Sardar and ors.
RespondentKali Pada Das
Cases ReferredIn Bani Madho Ram v. Mahadeo Pandey
Excerpt:
- .....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; where no such immediate appeal lies,.....
Judgment:

Nasim Ali, J.

1. (Revision No. 963 of 1939.) The facts which are not in dispute in this rule are as follows : On 10th November 1937, the petitioners filed an application for settlement of their debts before the Debt Settlement Board, Howrah, under Section 8, Bengal Agricultural Debtors Act. The application was dismissed by the Board on 19th January 1938, on the ground that the petitioners were not 'agriculturists.' They appealed against this decision to the Appellate Officer. This appeal was dismissed on 25th May 1938. They applied for review under Section 44(b) of the Act, but this application was also rejected. Petitioners 1 to 4 thereafter filed another application before the Special Debt Settlement Board, Howrah under Section 8 of the Act for settlement of their debts. This application was dismissed on 27th November 1938, on the ground that a fresh application was not maintainable. They applied for a review of this order. The opposite party creditor was not present on the date of the hearing of this application. On 19th March 1939 the Board allowed the application for review and fixed 16th April 1939 for hearing on the merits. On 1st May 1939 the Board issued a notice under Section 34, Bengal Agricultural Debtors Act for staying execution proceedings against the petitioners in the first Court of Munsif at Howrah which was started by the opposite party for realization of about Rs. 2000 on the basis of a decree. A similar notice under Section 34 of the Act was also issued on the same date on the application of petitioner 5 before the Debt Settlement Board. The Munsif thereupon stayed the proceedings on that date. On 10th May 1939, the opposite party decree-holder applied to the Munsif for vacating the order of stay. On 21st May 1939, the Board decided that petitioners 1 to 4 were 'agriculturists.' On 29th May 1939, the Munsif arrived at the following findings : (1) That the finding of the Board in the proceeding started on the-basis of the first application by the judgment-debtor under Section 8 of the Act is binding on the Board and consequently the second petition filed by them is not a petition by debtors within the meaning of the Act; and (2) That after the dismissal of the first application under Section 8 a second' application under that Section was not maintainable in law. He accordingly vacated the order staying the execution proceedings. On 20th June 1939, the present rule was issued on the decree-holder on the application of the judgment-debtor to show cause why the said order should not be set aside.

2. The issue between the parties before the Munsif in substance was whether the judgement-debtors were debtors within the meaning of the Bengal Agricultural Debtors Act and were therefore entitled to have their debts settled under that Act. This question is a question relating to execution as no order for attachment and sale of the properties of the judgment, debtors in execution can be made without the determination of this question. This question was therefore determined by the Munsif under Section 47 of the Code. By Section 2(2) of the Code decree includes the determination of any question under Section 47. The combined effect of Section 47 and Section 2(2) of the Code is that an order in execution proceedings is a decree, if, so far as regards the Court passing it, it conclusively determines a question relating to the rights and liabilities of the parties with reference to the relief granted by the decree Jogodishury Devea v. Kailash Chundra Lahiry (1897) 24 Cal. 725 at p. 737. Under the decree the judgment-debtors are liable to pay at once the entire decretal amount. The decision of the Munsif is that the judgment-debtors are not debtors within the meaning of the Bengal Agricultural Debtors Act and are not therefore entitled to the benefit of that Act. This decision will preclude them from pleading it in a subsequent stage of the execution proceedings that their liability under the decree has been reduced by an award under Section 19, Bengal Agricultural Debtors Act or that they have been declared insolvent under Section 22 of the Act and that the execution proceedings have abated by reason of an award under Section 19 or by an order under Section 22 (see Section 34). It therefore conclusively determines the question relating to the judgment-debtors' liability with reference to the relief granted by the decree and is a decree.

3. An appeal against such a decree of a trial Court lies to the District Judge or to the High Court under Section 96 of the Code and an appeal from the decree of the lower Appellate Court lies to this Court under Section 100. In this case an appeal against the decision of the Munsif lay to the District Judge and a further appeal to this Court. The judgment-debtors did not appeal to the District Judge but moved this Court under Section 115 of the Code. The question is whether this order can be revised under Section 115 of the Code. That Section authorizes this Court to revise an order of a Subordinate Court in any case 'in which no appeal lies thereto.' The appeal referred to in this Section may be an appeal to this Court under Sections 96, 100, 104 or under Order 43, Civil P.C. or under any other statute. In Sashi Kanta Acharjya v. Basirabad Loan Office Co. : AIR1936Cal786 a second appeal to this Court was apparently barred under Section 102 of the Code. The decision in that case may be an authority for the proposition that in cases where an appeal is allowed to the lower Appellate Court but no appeal is allowed against an appellate decree to the High Court the person aggrieved may invoke the jurisdiction of the High Court under Section 115 though he has not preferred any appeal to the lower Appellate Court. But that case is no authority for the proposition that where an appeal is allowed to the High Court the High Court can interfere under Section 115 of the Code.

4. The contention of the judgment-debtors is that the word 'lies' in Section 115 means 'lies' at the time when the High Court is moved under Section 115 and that in this case a second appeal to this Court did not lie at the time when this Court was moved under S, 115 as no appeal to the lower Appellate Court had been then preferred and decided. In other words the contention is that the expression 'appeal lies' means the right of appeal has already accrued. If this contention be sound the position would be that a person aggrieved by a decree of the trial Court by refusing to file an appeal to the lower Appellate Court can stifle a second appeal to this Court and can confer jurisdiction on the High Court to revise the decree of the trial Court. I am of the opinion that this was not the intention of the Legislature in enacting Section 115. It can never have been intended by the Legislature that where a person aggrieved by a decree of the trial Court has his remedy by way of appeal to this Court (if he will only first avail himself of that remedy by taking an appeal to the lower Appellate Court) he can seek his remedy in this Court under Section 115. The object of Section 115 was to give relief to a person who cannot get relief in this Court under Sections 96, 100, 104 or Order 43 or any other statute. The words 'appeal lies thereto' indicate that where a relief can be given by this Court in the exercise of its appellate jurisdiction its revisional jurisdiction under Section 115 cannot be invoked. These words, in my opinion, mean 'appeal is allowed under the Code or any other law.' In Bani Madho Ram v. Mahadeo Pandey : AIR1930All604 , Sulaiman and Niamatulla JJ. observed:

It seems to us that no revision lies under Section 115, Civil P.C. It was clearly a case of a decree which could have been appealed against to the District Judge from whose decree a second appeal could have been filed to this High Court. It is therefore, not a case in which no appeal lies to the High Court at all although no appeal could have been filed from the original decree of the first Court direct. In our opinion there is no ground for restricting the scope of the words 'in which no appeal lies thereto' to cases where no appeal lies from the order sought to be revised. So long as the party has a right to come up to the High Court by way of an appeal and has failed to avail himself of that opportunity by first going up to the District Judge and then coining up to the High Court, he cannot ask the High Court to interfere in revision.

5. I respectfully agree with these observations. The next contention of the judgment-debtors is that the jurisdiction of this Court to interfere under Section 115 of the Code in oases like this had never been questioned before and, therefore, we should interfere in this case. This argument, however, is irrelevant on the question of the interpretation of Section 115 though it may be a good ground for not allowing costs in this case, and though perhaps it may have some bearing on the question of an admission of an appeal under Section 105, Limitation Act if such appeal be presented in future by the petitioners. I therefore hold that this petition for revision is incompetent. In this view of the matter I express no opinion on the questions raised in this rule. The rule is accordingly discharged. But there will be no order for costs.

6. Civil Revision Cases Nos. 1506 and 1650 of 1939. The facts of, these two cases are in all material particulars the same as in Revision Case No. 963 of 1939. For the reasons given in that case I discharge both these Rules also, without costs.

Narsing Rau, J.

7. (Revision Case No. 963 of 1939.) I agree that the question whether the execution of a decree is or is not barred, whether temporarily or permanently, by reason of some special law in the case be-fore us, by the Bengal Agricultural Debtors Act is a question within Section 47, Civil P.C., and its determination is accordingly a decree within the meaning of the definition in Section 2(2) of that Code. It follows that an order staying or refusing to stay execution upon the ground that execution is or is not barred by the special law in question is subject to appeal as a decree. The order which forms the subject-matter of this Rule is accordingly appealable as a decree. The next question is whether we have jurisdiction to interfere with the order in revision under Section 115, Civil P.C. The Section, it will be remembered, runs:

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; etc...the High Court may make such order in the case as it thinks fit.

8. The words 'in which no appeal lies thereto' present some difficulty. 'Thereto' means of course to the High Court. The words 'no appeal lies' are not so easy to interpret. 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; where no such immediate appeal lies, the High Court has jurisdiction to intervene in revision, although whether it will exercise this jurisdiction or not will depend upon the urgency of the need for intervention. In the case before us there is no urgent need for our intervention at the present stage, even if we have jurisdiction to intervene. Whatever, therefore, may be the precise interpretation of Section 115, Civil P.C., I agree that the present Rule should be discharged.


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