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C.D.M. Hindley Vs. JoynaraIn Marwari - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1919)ILR46Cal962,54Ind.Cas.439
AppellantC.D.M. Hindley
RespondentJoynaraIn Marwari
Cases ReferredBalakrishna v. Vasudeva
execution of decree - attachment--provident fund--jurisdiction--small cause court--civil procedure code (act v of 1908), section 115. - .....positive rule covers now so many matters, that it is peculiarly easy to represent errors of law as matter of jurisdiction. despite the discretionary nature of the revisional powers, the decisions under section 115 show a lively and well founded terror lest this court should be inundated with mere matters of appeal. from time to time, but not without recurring checks, the construction of this section has drifted towards the view which the respondent here contends for; but it has never i think arrived at it. logically put that view must be:--that clause (a) refers only to the propriety of the forum; that clause (b) applies only where a case has not been entertained for decision at all but has been wrongly dismissed in limine; and that clause (c) refers to errors in the method or manner of.....

Rankin, J.

1. In this case I am asked under Section 115 of the Civil Procedure Code to set aside an order made by the Small Cause Court on 23rd November 1918. That order is as follows: 'Payable in two weeks. In default execution to issue.'

2. The action was tried in the Court of the 2nd Munsif at Monghyr. The plaintiffs in 1914 lent Rs. 200 on a promissory note to the defendant's son who Was an employee of the E.I.R. and who died on the 27th September 1916 leaving neither widow nor children. So far as the parties know he left no will and neither Probate nor Letters of Administration have been granted to anyone in respect of his estate. The plaintiffs in 1917 applied as creditors to the District Judge at Monghyr for a grant of administration but their application was dismissed. In these circumstances the action was brought against the defendant apparently as being 'the heir at law and legal representative' of his son. As appears by the Munsif's decree of 29th January 1918 the suit was decreed with costs. There is nothing on the face of the decree to show that it is not an ordinary personal judgment against the father or to limit execution thereon to the property of the deceased. Both before and during the trial the plaintiffs and defendant seem to have litigated between themselves, the question whether the money standing to the credit of the deceased with the Provident Institution of the E.I.R., was attachable for the debt in view of Section. 4 of Act IX of 1897 as amended by Act IV of 1903. The Munsif and on appeal the District Judge both held that it was attachable for reasons which I am unable to appreciate.

3. On the 18th July 1918, the Munsif's decree was transmitted for execution to the Small Cause Court at Calcutta. This court has treated the decree as one against the deceased's estate which is at all events in substance correct. On 1st August a prohibitory order, in the form specified by Order XXI, Rule 52 of the Code, issued to the Manager of the Provident Institution, as being a public officer, and not to the Trustees who are I think the only proper parties. It was returned with a reference to the Act. After some correspondence on the 23rd September a notice was issued from the Court to the Manager requiring him personally to appear and show cause 'why the money attached, in his hands by a prohibitory order, dated 1st August 1918 should not be deposited in Court or in default why execution should not be issued against him.' The matter ultimately came before a Judge on the 23rd November 1918 and as to what happened then there is no dispute between the parties. The respective attorneys argued the question whether Provident Fund moneys were or were not attachable in view of the Acts abovementioned in the case of a depositor who had died leaving neither widow nor child. No evidence was taken: nor indeed was there need of any, in view of the entire absence of any intention to dispute the facts about the nature of the Institution or of the fund in question. No issue was directed. The subject matter of the attachment was denned by the notices 'certain money now in your hands, viz., Rs. 1,182-2 out of the Provident Fund money due to the deceased H.W. Lakin.' The learned Judge has given no statement of his reasons, but he has held this money to have been validly attached by the notice of the 1st August and has ordered execution--presumably against the Manager, possibly against the institution to issue in default of payment.

4. Now, in view of these three decisions, it may be well to state shortly the purpose and intention of the Acts. These Acts make provision in the interests of certain large classes of employees for a scheme, of compulsory and to a limited extent voluntary thrift. Part of the employee's wages is imported whether he likes it or not: within narrow limits he has an option to contribute more: the employer has on his side to add a Contribution: and these sums together with interest, profits or other increments make a total fund of which a defined proportion is held on the individual account of each employee. The Legislature is dealing with people who are poor, with people who are being compelled, and with such people in very large numbers. Its intention is that such people shall incase of necessity be able to afford a passage home to Europe, in case of retirement have something to live on, in case of death have something to leave. It is not ignorant that if a railway has a hundred thousand employees, the temptation to run into debt or to charge of anticipate his share will occur at some moment of his lifetime to ninety thousand of them at least. Neither the Railway Company nor the Institution is to have its money wasted in large quantities upon the management expenses. There is to be no standing army of attorneys and attorneys' clerks attending to notices and orders from all the Courts in India, settling priorities among competing claims, paying the money into Court as soon as it comes in and acting towards creditors and mortgagees as a providence with costs out of the fund. By rules made for this Institution under the Act, when an employee dies his share if small is to be summarily and directly distributed according to special rules which brush aside the ordinary law as to wills or intestate succession. If his share is larger it is payable to his executor or administrator and to him only on production of his grant: the burden of a due administration is thus put upon the proper shoulders. Whether an employee is in the service or out of the service whether he be alive or dead, his share is unattach able in the lands of the Institution. This is the very basis of the scheme. Section 4(1) of the Amended Act has been judicially construed in Veerchand v. B.B. & C.I. Ry. Co. (1904) I.L.R. 29 Bom. 259 and Seth Mannalal v. Gainsford (1908) I.L.R. 35 Calc. 641. It means what it says and is no hardship upon anybody. The plaintiffs' point ever since their action was started before the Munsif, at the trial, on appeal before the District Judge, before me and most probably in the Small Cause Court, rests upon Sub-section (2) of Section 4. That has got nothing to do with this case and in no way cuts down Sub-section (1). It is a further provision directed to a wholly different matter. It ensures that money payable to a widow or child as such directly shall not, even in their hands, be treated as assets of the deceased's estate. Nay more; the Legislature knowing that this might be rendered ineffective by getting the widow or child to incur or to join in incurring the debt, provides (for the more complete discouragement of creditors) that such money, although in the hands of the widow or the child, shall not be made to answer for their own debts if incurred in the lifetime of the deceased. The only light thrown by the second Sub-section upon the first is that the first did not go far enough.

5. The result is that, in my view, the order of 23rd November 1918 is one which purports to attach that which the Legislature has forbidden any Court to touch.

6. I have now to see whether this comes within the scope of Section 115 of the Code. It is quite impossible to suggest that the learned Judge held an inquiry upon evidence as to any disputed facts or that his error consisted in his holding wrongly upon any matter other than his own powers. What has happened is that there is a prohibition in the statute, that he has failed to see it, and that he has done what the statute forbids. Whether he has misread the definition of 'compulsory deposit' or has wrongly imported some qualification into Sub-section (2) of Section 4--and these are the only alternatives--his error is the same in nature for the present purpose. In the face of an objection that he had no power to do so, he has done what the statute forbids, not being under any misapprehension as to the facts: he has done intentionally an act of the very class prohibited; and he has done it solely because the words of the statute failed to convey the prohibition to his mind.

7. A review of the cases upon this section leads me, to think that whether or not this case comes within Clause (a) it can Only escape this clause by falling within Clause (c). It comes very close indeed to what has been frequently instanced as a typical case under Clause (c)--execution levied upon the tools of an artisan contrary to Section 60 of the Code: Badami Kuar v. Dinu Rai (1886) I.L.R. 8 All. 111, 115, Dhan Singh v. Basant Singh (1886) I.L.R. All. 519, 529, Sew Bux v. Shib Chunder (1886) I.L.R. 13 Calc. 225, 231. What the Small Cause Court has done here is, I think a long way further on the wrong side of the border line that divides mere error in law from acting illegally than was the order set aside by Petheram C.J. and Ameer Ali J. in Seoraj Nandan v. Gopal Suram (1891) I.L.R. 18 Calc. 290. All cases of acting illegally are cases of error in law though the converse is very far from true. The element which must be present in the nature of the error to give rise to the power of revision has never been very precisely defined, but I think it clear upon the statute and not really doubted in the decided bases, that any error in law which amounts to a usurpation of authority in the act done by the Court comes within Clause (c) if it is not already within Clause (a). In the broad sense of the word no Court ever has jurisdiction to act illegally though it may have jurisdiction to make an order which in fact or in law is' wrong. I think that the Legislature when in 1879 it added the last clause can only have meant to obviate unprofitable nicety in the interpretation of the word 'jurisdiction' in the section as it originally stood, If the dictum of Woodroffe J. in Shew Prosad v. Ram Chunder (1913) I.L.R. 41 Calc. 323, 339 be right as to the two meanings of the word and as to the narrower meaning haying been intended, it is I think an irresistible conclusion that 'the legal authority of a Court to do certain things, namely, to make a particular order in a case over which it has jurisdiction in the sense stated' is the very matter to which the first part of the newer clause is addressed. If a mere irregularity is to be corrected provided only that it is material (as the statute plainly says), it is indeed strange that excess of authority in matters of substance should be left without remedy altogether. It was argued at the bar on the strength of the judgment given by Jenkins C.J. in the case last cited that the words 'acted illegally.' refer only to matters of procedure. This is I think a misunderstanding. Save in extreme cases such matters come within the last words of Clause (e). The word 'procedure' is used by the Chief Justice as covering all three clauses of the section--a clear though certainly an extended sense. The phrases are 'faults of procedure', 'error of law and not of procedure' and I think he is adverting to the general scope of the section as a whole in short and comprehensive phrase. He uses the word 'procedure' as the keynote of the section just as the Privy Council in Balakrishna v. Vasudeva (1917) I.L.R. 40 Mad. 793, 799 use the word 'jurisdiction.' In his judgment the word 'procedure' does not mean merely the method of conducting a case and in the Privy Council's judgment the word 'jurisdiction' does not mean merely propriety of forum.

8. In India the law both substantive and adjective has been codified in so many of its branches and positive rule covers now so many matters, that it is peculiarly easy to represent errors of law as matter of jurisdiction. Despite the discretionary nature of the revisional powers, the decisions under Section 115 show a lively and well founded terror lest this Court should be inundated with mere matters of appeal. From time to time, but not without recurring checks, the construction of this section has drifted towards the view which the respondent here contends for; but it has never I think arrived at it. Logically put that view must be:--that Clause (a) refers only to the propriety of the forum; that Clause (b) applies only where a case has not been entertained for decision at all but has been wrongly dismissed in limine; and that Clause (c) refers to errors in the method or manner of the trial. In my opinion this construction, when narrowly looked at, is found to be doubtful and in conflict with a respectable body of authority at every point. Taken broadly, I think that it eviscerates rather than interprets the section. It gets rid of difficulty but by a process of jettison. It is plain enough that revision is not appeal but there is no necessity to throw away the baby in emptying the bath. Jurisdiction to try a suit does not mean jurisdiction to anything whatever by order made in the suit if it did, an exception for material errors in procedure (strictly so called) would be almost ludicrous. In the present case the applicant only came into this suit at all upon an application against him which fairly read, was an invitation to the Court to do what the statute denies the porter to do. In substance the Legislature has put the funds beyond the reach of the Court below and the Court has stepped out of its sphere in purporting to levy on them. This error is a usurpation, an offence against public order: in the old language a contempt of the Crown, in the language of the section 'acting illegally.'

9. I have now to consider the question of discretion in this particular case. Now, the first ground that, was given, why I should not exercise my powers, assuming the case to be within the section, is that from the point of view of these creditors, the error was a mere error of procedure in a large sense. I. am of opinion that as far as that is concerned, it would be entirely wrong of me to refuse to exercise my discretion on any such ground. From the point of view of the Provident Institution it is a matter of great importance: the Act regards it as a matter of great importance; it has been a matter of dispute from the very commencement of these proceedings, and, if the plaintiff fails upon it, it does not seem to me that I ought to regard it as a trivial matter or as a mere matter of form.

10.The next ground that was given is that there has been no application for a new trial in the Small Cause Court. I am satisfied, that the right to make such application is at least doubtful. After all there have been decisions by three Judges upon this matter, and I think it would be very hard if the proper remedy were refused to the present applicants on the ground that they had not attempted to get a fourth. In addition the application here brought was an application against the Manager, that is to say, in such a way that it leaves it very doubtful whether if this order were to be allowed to stand, the Trustees as representing the Institution would not by a suit such as they have instituted in this Court, be able to render that order infructuous. It seems to me, looking at the matter as whole, that there is no reason whatever why the remedy asked for should not be given, and the order I shall make is that the decree of the Small Cause Court be set aside with the costs of this Rule and the matter remitted back to the small Cause Court to proceed according to law.

11. As regards the motion and the action which were tried and argued together along with the Rule under Section 115, it is not now necessary to go into the technicalities or the merits of the action at all. As I am setting aside the order under Section 115, 1 shall make no order on, the motion and order that the action be dismissed.

12. The question arises as to what to do with the costs of the motion and the action. In my opinion the correct order to make as regards costs of the motion and action is, that the Trustees of the Provident Institution must pay to the defendants in the action any costs that have been incurred by them extra to the costs which they required to incur in connection with the Rule.

13. The result, therefore, will be that the costs of the Rule must be paid by the respondents--that is the plaintiffs in the original action before the Munsif--to the Manager, but that the Trustees must pay to them the costs which they have incurred as defendants in the action and as respondents to the motion in so far as those costs are additional to the costs which they have incurred as respondents in connection with the Rule.

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