Skip to content


Salam Chand Kannyram Vs. Bhagwan Das Chilhania - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Reported inAIR1926Cal1149
AppellantSalam Chand Kannyram
RespondentBhagwan Das Chilhania
Cases ReferredBai Atiani v. Deepsingh
Excerpt:
- .....order cannot be dealt with under section 115.3. speaking for myself and with great respect to the learned judges who have held otherwise i have no hesitation in holding that section 115, civil p.c., has no application whatever to interlocutory orders. here section 115 was quoted.4. it is perhaps difficult to say where the record of an issue that had been decided would be found. i have not myself the slightest doubt but that the legislature where it speaks of the case that had been decided meant the whole case which so far as the court dealing with it was concerned had been finally dealt with. i can conceive of the high court sending for the record of the case. i cannot conceive of its sending for the record of an issue. the words seem perfectly plain. to decide a case is to decide the.....
Judgment:

Cuming, J.

1. The facts of the case out of which this Rule has arisen are these: The petitioner who obtained the Rule brought a suit on the Original Side of this Court against the opposite party for Rs. 52,582 odd on the 27th November 1922. On the 25th June 1923 he applied that certain properties of the opposite party might be attached before judgment. These properties were apparently in the district of Nadia though that is not stated in the petition where the facts are set out vary incompletely. The properties were duly attached on the 12th July 1923. The suit was decreed on the 18th February 1924. There was no appeal. Then on the same date, which again it is impossible to ascertain either from the petition or from the learned Counsel who has appeared for the petitioner, the decree was sent to the District Judge at Nadia for execution and the property was advertised for sale on the 8th February 1926. A claim was then filed in the executing Court on the 26th January 1926 by one Bhagwan Das alleging that the property belonged to him. The petitioner then appeared and objected that the Nadia Court had no jurisdiction to entertain the claim.

2. That Court held that he had the jurisdiction to entertain the application and ordered the parties to produce their evidence. Against this order of the learned Subordinate Judge the petitioner has moved this Court under Section 115 and obtained this Rule. It has been contended by the opposite party that the order being an interlocutory order cannot be dealt with under Section 115.

3. Speaking for myself and with great respect to the learned Judges who have held otherwise I have no hesitation in holding that Section 115, Civil P.C., has no application whatever to interlocutory orders. Here Section 115 was quoted.

4. It is perhaps difficult to say where the record of an issue that had been decided would be found. I have not myself the slightest doubt but that the Legislature where it speaks of the case that had been decided meant the whole case which so far as the Court dealing with it was concerned had been finally dealt with. I can conceive of the High Court sending for the record of the case. I cannot conceive of its sending for the record of an issue. The words seem perfectly plain. To decide a case is to decide the whole case and not to decide a part of the case. I am therefore of opinion that Section 115 has no application to interlocutory orders.

5. This is the view which has commended itself to the High Courts of Bombay, Allahabad and Madras. Motilal v. Nana [1894] 18 Bom. 35; Harsaran v. Muhammad Raza [1882] 4 All. 91; and In re. Nizam of Hyderabad [1886] 9 Mad. 256. The reason seems self-evident. To allow revision of interlocutory orders would have at once the effect of two Courts trying more or less simultaneously the same suit: a cumbersome and expensive procedure. For if one interlocutory order can be dealt with under Section 115, every interlocutory order can be the subject of an application under Section 115. Our attention has, however; been drawn to a number of decisions of this Court which apparently hold the contrary view.

6. I think I should now consider the present case in the light of those decisions. The earliest case I have been referred to is the case of Dhapi v. Rampershad [1887] 14 Cal. 768. Mr. Justice Norris in disposing of this case held that the word 'case' in Section 622, Civil P.C. (now. Section 115) is wide enough to include an interlocutory order and the words 'record of any case' include so much of the proceedings in any suit as relate to interlocutory orders. The learned Judge in coming to the conclusion referred to a number of cases in which a contrary view was taken. Mr. Justice Tottenham concurred in making the Rule absolute but he seemed to doubt whether the matter could be dealt with under Section 622 (now Section 115).

7. The next case to which I have been referred is the case of Chandi Ray v. Kripal Ray 15 C.W.N. 682. Mr. Justice Woodroffe in dealing with that case referred to the case of Dhapi v. Ramprasad [1887] 14 Cal. 768 and remarked:

Speaking for myself, I should have thought that interlocutory orders did not come within the scope of this section. It is unnecessary to decide the point for reasons with which I shall deal later on.8. The learned Judge refused to interfere on the ground that there was another and adequate remedy open to the petitioner.

9. We are then referred to the case of Gobinda Mohan Das v. Kunja Behary Dass 14 C.W.N. 147, where Mr. Justice. Mookerjee held that if the Court is satisfied that an interlocutory order has been made without jurisdiction or under circumstances that are likely to cause irreparable injury to one of the litigants, the High Court could set it aside under Section 15 of the Charter (now Section 107 of the Government of India Act.) The learned Judge refused to consider the point as to whether it could come under Section 115, Civil P.C.

10. I have next been referred to the case of Amjad Ali v. Ali Hossein 15 C.W.N. 353. There the same learned Judge Mr. Justice Mookerjee relied on apparently the case of Gobinda Mohan v. Kunja Behary 14 C.W.N. 147 and stated that it was pointed out in that case that the test to be applied was whether irreparable injury would be caused to one of the litigants if the matter was not set right. The learned Judge apparently dealt with the mutter under Clause 15 of the Charter which corresponds to Section 107, Government of India Act. It will be noted that the test the learned Judge would here apply in that case is more limited than the test the same learned Judge applied in the case of Gobinda Mohan v. Kunja Behary 14 C.W.N. 147. Whether Section 107 of the Government of India Act has any application it is not necessary to discuss, Speaking for myself and with great respect to the learned Judge I do not think it has. It is sufficient for the decision of the present Rule to accept the test as laid down in Amjad Ali v. Ali Hossain 15 C.W.N. 353. Applying it to the present case there is no ground whatever for interference. The petitioner by the order of the learned Judge holding he has jurisdiction to determine the matter has suffered no irreparable injury at all, for it is quite possible that the Judge may decide the claim case ultimately in his favour.

11. There is a further reason for not interfering. Even if ultimately unsuccessful in his claim case the plaintiff has a further and adequate remedy for he can bring a suit. This Court does not interfere as a general rule in revision where the aggrieved party has another and adequate remedy.

12. The result is this Rule must be discharged with costs. Hearing-fee, 5 gold mohurs.

Page, J.

13. (After setting out facts as given in the judgment of Cuming, J., his Lordship proceeded.) The questions which fall for determination are: (1) Has the Court jurisdiction under Section 115 to revise the order of which complaint is made; and (2) if the Court is competent to do so, ought the Court in exercise of its discretion to interfere with the said order?

14. Now, the order under consideration, although not subject to appeal, is an interlocutory order, and it has strenuously been argued before us that inasmuch as the Court is entitled to exercise its power of revision under Section 115, Civil P.C., only in respect of a 'case which has bean decided,' the Court is not empowered to revise an interlocutory order which ex concessis does not determine the rights of the parties. Indeed, it is alleged that so far from the case having been decided it has not yet even heard, and, therefore, under Section 115 the Court has no jurisdiction to entertain the present Rule.

15. There is, I think, force in this contention and some authority in its favour: Buddhu Lal v. Mewa Ram [1921] 43 All. 564, Bai Rani v. Jagga Dullabh [1920] 44 Bom. 619 and In re Nizam of Hyderabad [1886] 9 Mad. 256 and per Woodroffe, J., in Chandi Ray v. Kripal Ray 15 C.W.N. 682; but the matter is not res integra and it is now well settled, at any rate in this Court, that the High Court has jurisdiction under Section 115 to revise interlocutory orders passed by Subordinate Courts from which no appeal lies to the High Court; see Dhapi v. Ram Pershad [1887] 14 Cal. 768; Gobinda Mohan v. Kunja Behary 14 C.W.N. 147; Siva Prasad Ram v. Tricomdas Cooverji Bhoja [1915] 42 Cal. 926; Sarajubala Debi v. Mohini Mehan Ghose : AIR1925Cal204 ; Secretary of State v. Narsibhai Dadabhai A.I.R. 1924 Bom. 65; Somasundaram v. Manicka [1908] 31 Mad. 60; Jagannatha v. Sarathambal A.I.R. 1923 Mad. 321; Nauratan Lal v. W.J. Stephenson [1919] 4 Pat. L.J. 195 and Ralla Ram v. Mt. Rai A.I.R. 1922 Lah. 63. In my opinion, the matter is concluded by authority. I am the less disposed to re-agitate the question or to cavil at the law as it now stands, because I deem it to be of great importance that the powers of revision with which the Court is entrusted should not be restricted see Bai Atiani v. Deepsingh [1916] 40 Bom. 86; and even if I were not of this opinion very cogent arguments would have to be forthcoming to induce me to acquiesce in any limitation of the Court's authority. Est boni judicio ampliare jurisdiction.

16. The second question then arises, namely: Are the circumstances of this case such that the Court in the exercise of its discretion ought at this stage in the proceedings to intervene in the claim case, and to revise the order in dispute? In my opinion, clearly not. The present Rule appears to me to be premature, for it may be that in the event the claim case will be dismissed; and it is also misconceived, for if the claim of the opposite party is allowed, it would be open to the petitioner to challenge the title of the successful claimant in a separate suit (O. 21, Rule 63); and, in my opinion it is only when irremediable injury will be done, and a miscarriage of justice inevitably will ensue if the Court holds its hand, that the Court ought to intervene in current litigation and disturb the normal progress of a case by revising an interlocutory order that has been passed by a Subordinate Court.

17. For these reasons, in my opinion this Rule is misconceived, and should be discharged with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //