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Benode Behari Bhadra Vs. Ram Sarup Chamar - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in15Ind.Cas.679
AppellantBenode Behari Bhadra
RespondentRam Sarup Chamar
Cases ReferredBhagwan Ramanuj v. Khetther Moni Dassi
Excerpt:
second appeal - application to set aside execution sale on ground of fraud--difference between old and new codes--civil procedure code (act xiv of 1832), section 244--civil procedure code (act v of 1908), section 104, sub-section (2), section 115, order xxi, rule 90 and order xliii, clause (j)--sale held under old code--decision of lower appellate court under new code--whether second appeal lies--revision--limitation--erroneous decision on point of limitation, no ground, for interference in revision by high court. - .....for further consideration.2. a preliminary objection is taken that no such appeal lies under the present code of civil procedure. this objection undoubtedly must prevail if the present code applies; for under it fraud is put on the same footing as material irregularity by order xxi, rule 90, and section 104, sub-section (2), read with. order xliii, clause (i), makes it clear that there is now no second appeal in a case such as this.3. under the code of 1882, a sale could be impeached for fraud under section 244 thereof, and, therefore, a second appeal lay. the sale, with which we are here concerned, was held on the 17th september 1900, that is to say, under the old code. the first application for setting it aside was made on the 23rd july 1907, and allowed by the first court on the 6th.....
Judgment:

1. This is an appeal against an appellate order, which reversed an order of the Court of first instance, setting aside a sale in execution on the ground of fraud and material irregularity in publishing and conducting it, and remanded the case for further consideration.

2. A preliminary objection is taken that no such appeal lies under the present Code of Civil Procedure. This objection undoubtedly must prevail if the present Code applies; for under it fraud is put on the same footing as material irregularity by Order XXI, Rule 90, and Section 104, Sub-section (2), read with. Order XLIII, Clause (i), makes it clear that there is now no second appeal in a case such as this.

3. Under the Code of 1882, a sale could be impeached for fraud under Section 244 thereof, and, therefore, a second appeal lay. The sale, with which we are here concerned, was held on the 17th September 1900, that is to say, under the old Code. The first application for setting it aside was made on the 23rd July 1907, and allowed by the first Court on the 6th July 1908; but the order was set aside on appeal and the case remanded op the 6th [November 1908. On remand the application was dismissed by the Court of first instance on the 12th June 1909. There was an appeal, and on the 29th January 1910, the original order was once more set aside and the case, again, remanded. The present second appeal is against the remand.

4. The new Code came into force on the 1st January 1909, and, therefore, both the original order and the appellate order with which we are now dealing, were made under it. The question is whether the matter of appeal is governed by it or by the old Code.

5. The learned Vakil, who appears on behalf of the appellant, relies on Section 6, Clause (c) of the General Clauses Act of 1897, and on the decision of the Judicial Committee in The Colonial Sugar Refining Company Limited v. Irving (1905) A.C. 369 at p. 372 : 74 L.J.P.C. 77 : 92 L.T. 738 : 21 T.L.R. 513.

6. The case referred to is, no doubt, the highest authority for holding that the disturbance of an existing right of appeal is not a mere alteration of procedure, and that litigants have from the time they came into Court a vested right to any appeal then provided by law. Consequently, the general rule against the retrospective operation of. a repealing Act applies, and unless it is otherwise expressly provided, the repealed provisions relating to appeals continue to govern the pending cases. Now, the law in India against the retrospective construction of a repealing enactment is to be found in Section 6 of the General Clauses Act above referred to and that section (we quote only so much as is necessary) provides that where an Act repeals any enactment, then, ' unless a different intention appeals, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed, or affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation or liability as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced as if the repealing Act had not been passed' If the matter stood there, we are in clined to think that we should be constrained by the decision of the Privy Council to overrule the preliminary objection. But we must not overlook the words 'unless a different intention appears,' which control Section 6 of the General Clauses Act, 1897, and the provisions of Section 154 of the Code of Civil Procedure, 1908, which provides that nothing in the new Code shall affect any present right of appeal which shall have accrued to any party at its commencement.' It seems to us that a 'present right of appeal' can mean only a right existing on the 1st January 1909, to appeal against a particular order passed under the former Code and subsisting on that date. The words present right' are well understood. The meaning to be placed upon them is clear, and in this connection we need only refer to the remarks of Lord Esher M. R. in Hornsey Local Board v. Monarch Investment Building Society (1889) 24 Q.B.D. 1 : 61 L.T. 867 : 38 W.R. 85 : 59 L.J.Q.B. 105 : 54 J.P. 391. Having regard, then, to the express term of Section 154 of the new Code, we are of opinion that there is here evidenced a distinct intention to limit the operation of the provisions of Section 6 of the General Clauses Act, 1897, quoted above.

7. The preliminary objection, therefore, prevails and this appeal must be dismissed with costs as being incompetent. We assess the hearing-fee at 2 gold mohurs.

Rule No. 3036 of 1910.

8. There remains an application that we should move in revision under Section 115 of the Civil Procedure Code or Section 15 of the Charter Act.

9. The first Court took all the appellant's evidence and dismissed the application on the ground of limitation, and also on the merits. The lower Appellate Court pointed out, however, that the applicant was a minor, and that, therefore, he was entitled to the benefit of Section 7 of the Indian Limitation Act of 1877, which corresponds with Section 6 of the present Indian Limitation Act of 1908. The order was consequently set aside, and, as we have said in dealing with the appeal, the case was remanded for fresh consideration. The contention on behalf of the petitioner before us is that the learned Subordinate Judge was clearly wrong in his decision on the point of limitation, the error being caused by his having obviously over-looked the provisions of Section 9 of the Limitation Act, under which when once limitation has begun to run, no subsequent disability can stop it,

10. It appears that the original judgment-debtor, the father of the opposite party, died some time after the sale, and, therefore, time began to run. That being so, the learned Subordinate Judge does seem to have made a mistake; but the question is whether the mistake is one which can be put right by us in revision. The learned Vakil's argument is this that if a suit or an application is really barred by. limitation, then Section 4 of the Limitation Act lays it down that the Court is bound to dismiss it. If then the Court makes a mistake and fails to dismiss a suit which is in fact out of time, then it may be said to have acted without jurisdiction. This, no doubt, was the view expressed by Oldfield and Mahmood, JJ., in Har Prasad v. Jafar Ali 7 A. 345, but precisely the contrary view-was taken by Edge, C J., and Benerjee, J., in Sundar Singh v. Doru Shankar 20 A. 78. We find it exceedingly difficult to hold that a Court, which has jurisdiction to decide a case, can be said to have acted without jurisdiction, or illegally, or with material irregularity in the exercise of its jurisdiction, where it makes a mistake in law through failure to appreciate the whole of the law on the subject, and we are inclined to follow the opinion recently expressed on the original side of this Court in Ram Gopal Jhoojhoonwalla v. Joharmal Khemka 39 C. 473 : 15 Ind. Cas. 547 to the effect that an error in applying the law of limitation is not an error which can be corrected on revision.

11. We have been pressed with a number of other decisions of this Court, and particularly with that of Bhagwan Ramanuj v. Khetther Moni Dassi 1 C.W.N. 617 at p. 627, where the learned Judges expressed the opinion that Section 622 of the Code of 1882, with which Section 115 of the present Code corresponds, is evidently intended to authorize the High Court to interfere, and correct gross and palpable errors on the part of the Subordinate Courts so as to prevent injustice in non-appealable oases. We have no desire to say anything which might tend to limit by defining our powers under the section; but we hesitate to accept this ruling in so far as it draws a distinction between gross and palpable errors and other errors. All that we need say is, that the fact that the lower Court seems to have overlooked Section 9 of the Limitation Act is not, in our opinion, sufficient to justify us in exercising our revisional powers.

12. We have assumed so far that Section 9 of the Limitation Act does apply; but that section has been the subject of not a few decisions, and its applicability is not always obvious, so that, for ought we know, the learned Subordinate Judge may have noticed it, but come to the conclusion that it was not applicable, and he may possibly be right, although on facts, so far as they appear now, he would seem to have been wrong.

13. The result is that the Rule also must be discharged. We make no separate order as to costs.


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