Authored By : Lancelot Sanderson, William Teunon, H.Walmsley

Lancelot Sanderson, C.J.

1. This is an appeal under Section 15 of the Letters Patentarising from a difference of opinion between Chaterjea, J., and Mullick, J.

2. The facts are as follows:

The landlord of the judgment-debtor obtained a decree forrent against him, and in execution thereof, the Judgment-debtors interest in aPatni tenure was sold. His interest was a 2/3rds share. At the sale the debtorsinterest was bought for Rs. 2,755 by Kumar Chandra Kishore Roy Chowdhury, whowas the owner of the remaining l/3rd share. The judgment-debtor applied underOrder XXI, Rule 90, to have the sale set aside: the Munsif in the Court offirst instance set aside the sale on the ground that he was not satisfied thatthe sale proclamation was duly published, and on the further ground that theprice was deliberately understated in the proclamation and that the disputedproperty was a valuable one and might be worth Rs. 6,000, as alleged by thejudgment-debtor.

3. The auction-purchaser appealed from the order of theCourt of first instance and the District Judge allowed the appeal. On themotion of the judgment-debtor, a Rule was issued by the High Court which cameon for hearing before Chatterjea, J., and Mullick, J. Chatterjea, J., held thatthe Court had power to interfere under Clause (c) of Section 115 of the CivilProcedure Code or under Section 15 of the Indian High Courts Act, 1861. On theother hand, Mullick, J., came to the conclusion that having regard to thelimited operation of Section 115, the Court had no jurisdiction to interfere:he expressed no opinion as to Section 5 of the Indian High Courts Act.

4. The opinion of the Senior Judge prevailing, an orderremanding the case was made and a re-hearing was directed: hence this appeal bythe auction-purchaser.

5. The grounds upon which Chatterjea, J., based his judgmentwere:

(1) That the learned District Judge did not come to anyfinding, (a) as to whether there was a deliberate misstatement as to value inthe sale proclamation; or (6) as to the publication of the proclamation.

(2) That the learned District Judge started with amisconception on a fundamental point, in that he based his judgment upon theassumption that what was sold was one-third share of the Panti Taluk, whereasin fact it was a two-thirds share.

(3) That the learned District Judge assumed that thepurchaser was a new comer, whereas he was himself a co-sharer in the Patnitenure to the extent of one-third.

6. The question is, whether under the above circumstancesthe case comes within Clause (c) of Section 115 of the Civil Procedure Code.

7. The clause provides as follows : 11 5. "The HighCourt may call for the record of any case which has been decided by any Courtsubordinate to such High Court and in which no appeal lies thereto, and if suchsubordinate Court appears... (c) to have acted in the exercise of itsjurisdiction illegally or with material irregularity, the High Court may makesuch order in the case as it thinks fit."

8. This clause has been the subject of judicial decision inthis Court, e. g,, in Shew Prosad Bungshidhur v. Ram Chunder Haribux 23 Ind.Cas. 977 :41 C. 323 at. p. 338, Jenkins, C.J. said: "It appears to me thatSection 115 can only be called in aid when the failure of justice (if any) hasbeen due to one or other of the faults of procedure indicated in that section.

9. In Krishna Mohini Dossee v. Kedarnath Chuckerbutty 15 c.446 at. p. 449 : 7 Ind. Dec. (N.S.) 882 Petheram, C.J. speaking of Section 622of the Code of Civil Procedure of 18S2, which was in terms similar to thesection now under discussion, said : But then comes a very different and moredifficult question, and that is the question whether this order can be revisedby the Court under Section 622 of the Code of Civil Procedure. This is asection which has been a good deal enquired into.

10. In our opinion it is a section of very limitedoperation. What the section says is that the High Court may revise a decisionof the Court by which the case was decided if the Court appears to haveexercised a jurisdiction not vested in it by law, or to have failed to exercisea jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegallyor with material irregularity.

11. Now, it seems to us, that the meaning of this section isthat, whenever a Court has jurisdiction to decide a question, whether it is aquestion of law or a question of fact, its decision on that question is not revisableby this Court.

12. Both of these decisions were based upon the decision ofthe Judicial Committee of the Privy Council in Amir Hossan Khan v. Sheo BakhshSingh 11 C. 6 : 11 I.A. 237 : 4 S. P.C. 559 : Reriqyue & Jacksons P.C. No.83 : 5 Ind. Dec. (N.S.) 760.

13. The question therefore is, can it be said that theDistrict Judge acted in the exercise of his jurisdiction illegally or withmaterial irregularity, and having regard to the construction put on Clause (c)of Section 115, was the failure of justice due to such a fault of procedure asis indicated in this clause.

14. As regards the misstatement of value in theproclamation, as I read the District Judges judgment, he assumed that therewas such a misstatement but he thought it was not a material irregularity.

15. As regards the alleged want of finding with reference tothe publication of the proclamation, I think that the learned District Judgeshould have arrived at a definite conclusion on this point, but in view of hisfinding that the price obtained for the property was adequate, this matter wasapparently considered by him as of no material importance to his judgment. Asregards his misconception as to what was sold, and as to the position of theauction-purchaser, the learned Judge made a grave mistake of fact.

16. The learned Judge, however, had jurisdiction to decideall these questions, and if he made a mistake as to law or fact, this Courtcannot interfere by way of revision. He had to decide whether the priceobtained for the property was adequate. To arrive at a conclusion thereon hewould naturally first have to decide what was the plaintiffs interest in thePatni Taluk and whether the purchaser was a person who would pay a fair price.He stated that the property sold was a 1/3rd share, and therein he made a gravemistake, as the plaintiffs interest was a 2/3rds share he also considered thepurchaser to be a "new comer" whereas he was himself a co-sharer.

17. These are questions which in my judgment the learnedJudge had jurisdiction to decide, and although he made grave mistakes of fact,upon which he based his judgment with respect to these matters, in view of theconstruction placed upon the section in the above-mentioned cases, with which Iagree, his decision is not revisable by this Court. It may be noted that thejudgment-debtor was not without a remedy; he could have applied to the learnedDistrict Judge for a review and if the attention of the learned Judge had beendrawn to the serious mistake of fact which he had made, it is almost impossibleto believe that the application for review would have been refused.

18. As regards the contention that this Court has power tointerfere under Section 15 of the Indian High Courts Act, 1861. Having regardto the circumstances of this case, in my judgment this Court has no such power.

19. There was no right of appeal from the order of theDistrict Judge, and in my opinion, as already stated, under the circumstancesof the case, this Court has no jurisdiction under Section 115 of the CivilProcedure Code to revise the judgment of the District Judge; if this Court wereto interfere, basing its interference upon the powers conferred by Section 15of the Indian High Courts Act, it would in my judgment be straining the meaningof the word superintendence" unduly. It would mean that although there wasno right of appeal and no power to revise under Section 115 of the Code, thisCourt could by exercising its power of "superintendence" in effecthear an appeal, or act in revision. I am not prepared so to hold, and indeed itis not necessary to put upon the section in question any such strained meaning,because, as already stated, there was an obvious remedy available to thejudgment-debtor, viz., by way of review, by means of which the unfortunatemistake could have been put right.

20. A preliminary point was taken that there was no right ofappeal. In my judgment an appeal lies on the ground that Chatterjea, J.sjudgment was one which deprived the auction-purchaser of the benefit of the DistrictJudges judgment, which confirmed the sale, and consequently it was a judgmentwhich materially affected the merits of the question between the parties.

21. For these reasons, in my judgment, the appeal should beallowed with costs both in this Court and before Chatterjee and Mullick, JJ.,the Rule should be discharged and the order directing a re-hearing should beset aside. We assess the hearing fee at two gold mohurs for each hearing inthis Court.

William Teunon, J.

22. This is an appeal under Article 15 of the Letters Patentagainst the decision of Mr. Justice Nalini Ranjan Chatterjea.

23. By his decision he sets aside an order of the DistrictJudge of Dinajpur and remands the case in which the order was made forre-hearing.

24. A preliminary objection was taken that against thedecision of Mr. Justice Chatterjea no further appeal lay under Article 15 ofthe Letters Patent. On this point I agree with the decision of this Court inChandi Charan Saha v. Jnanendranath Bhattacharjee 41 Ind. Cas. 250 [LQ/CalHC/1917/119] : 21 C.W.N.921 (though that was an appeal against a judgment in second appeal) and,therefore, this objection in ray opinion, cannot be sustained.

25. The appeal arises out of an application made by thejudgment-debtor under the provisions of the Code of Civil Procedure, Order XXI,Rule 90, for the setting aside of a sale in execution.

26. The property sold was the judgment-debtors 2/3rd sharein a certain Patni Taluk. The trial Court held that in the sale proclamationthe value of the property had been deliberately underestimated, that the saleproclamation had not been duly published and that by reason of theseirregularities or frauds an adequate price had not been realised.

27. Against the order setting aside the sale on the groundsjust stated the auction-purchaser appealed. The District Judge at the hearingof the appeal came to no clear finding as to the publication of the saleproclamation, held that the statement of value (Its. 600) though a grossmis-statement was not calculated to deter possible bidders and that the pricefetched at the sale (Rs. 2,755) was not seriously inadequate. He, therefore,decreed the appeal.

28. Against this decision there was an application inrevision to this Court. At the hearing of the Rule then obtained it wascontended that the District Judge had failed to value the property sold,namely, judgment-debtors 2/3rd share in a certain Patni Taluk.

29. His judgment in fact makes it apparent that he conceivedthat he was required to value a 1/3rd share. Moreover, his judgment indicatesthat he has fallen into a further error regarding the area, that is, he appearsto think that the judgment-debtors statement of area, 600 bighas, applies notto his own share" (2/3rds) but to the whole Patni of which the Judge, therefore,proceeds to value 1/3rd, i. e., 200 bighas. The learned Judges who heard theRule differed, Mr. Justice Mullick, who has himself apparently misapprehendedthe District Judges statement regarding area, holding that the error committedby the District Judge did not bring the case within the scope of Section 115 ofthe Code, while the Senior Judge, Mr. Justice Chatterjea, was of opinion thatunder Section 115 of the Code, and also under Section 15 of the Charter Act,the Court could and should interfere.

30. Against the latters decision the present appeal hasbeen preferred by the auction-purchaser.

31. At the hearing before us, it has been contended onbehalf of the appellant that the error into which the District Judge has fallenis merely one of those erroneous decisions or sad mistakes" to which thecase of Amir Hassan Khan v. Sheo Baksh Singh 11 C. 6 : 11 I.A. 237 : 4 S P.C.J.559 : Reriqyue & Jacksons P.C. No. 83 : 5 Ind. Dec. (N.S.) 760. decided bytheir Lordships of the Judicial Committee, and the case of Shew ProsadBungshidhur v. Ram Chunder Haribux 23 Ind. Cas. 977 : 41 C. 323 at. p. 338should be held to apply.

32. To this contention I am unable to assent.

33. It may be that if the parties had been in dispute as tothe judgment-debtors interest in the Patni and if, however erroneously, theDistrict Judge had decided that his interest was not 2/3rds, but 1/3rd (and thearea not 600 bighas but 200 bighas), this would have been merely an erroneousdecision on a question of fact with which, acting under Section 115 of theCode, we could not and should not interfere.

34. But the case here appears to me to be different. Theproperty sold was clearly specified in the sale proclamation as thejudgment-debtors 2/3rd share. As to the extent of the judgment-debtorsinterest there was no dispute between the parties. Specified shares aredistinct entities. It is the duty of a Judge to decide secundum allegata etprobata. Instead of doing so, the learned Judge here has set himself to valuenot the property sold but an entirely different property and on his finding asto the value of this different or imaginary property he has declined to setaside the sale of the judgment-debtors property valued by the judgment-debtorat more than double the price realised.

35. By way of analogy merely, I should refer, in support ofthe view I take to two cases decided by the Bombay High Court and reported asGorakh Babaji v. Vithal Narayan Joshi 11 B. 435 : 6 Ind. Dec. (N.S.) 285 and inVenkubai v. Lakshman Venkoba Khot 12 B. 617 : 13 Ind. Jur. 270 : 6 Ind. Dec.(N.S.) 895.

36. For these reasons and differing with all respect from mylearned colleagues I am of opinion that the present appeal should be dismissedwith costs.

H. Walmsley, J.

37. This appeal is against an order passed by Mr. JusticeChatterjea on an application made by the present respondent.

38. The circumstances are as follows: The respondentslandlord obtained a decree for rent against him, and in execution of thatdecree he caused respondents share in a Patni Taluk to be put up for sale. Theshare was two-thirds of the Taluk. In the sale, the share was bought by theowner of the remaining one-third share. Subsequently the respondent applied tohave the sale set aside, and this application was granted by the Munsif. Thenthe auction-purchaser preferred an appeal, and the order setting aside the salewas reversed and the sale was confirmed. Thereupon the judgment-debtorpreferred a motion in this Court, a Rule was issued, and in due course the Rulecame on for hearing before Mr. Justice Chatterjea and Mr. Justice Mullick. Theformer held that the case was one in which it was right to interfere anddirected that the appeal should be heard again by the District Judge. Thelatter, however, was of opinion that the circumstances were not such as tobring the case within the scope of Section 115 of the Civil Procedure Code. Theauction-purchaser has lodged this appeal against Mr. Justice Chatterjeas orderdirecting that the appeal should be re-heard.

39. A preliminary objection was taken at the hearing by thelearned Pleader for the respondent, to the effect that no appeal lay, and hereferred to the case of the Justices of the Peace for Calcutta v. Oriental GasCompany 8 B.L.R. 433 : 17 W.R. 364. I do not think that that case supports hisargument. The learned Chief Justice said there: "We think that judgmentin Clause 15 means a decision which affects the merits of the question betweenthe parties by determining some right or liability." Applying that definitionto Mr. Justice Chatterjeas judgment, it is clear that it affects the merits ofthe question in a very material degree. The effect of the decision by the lowerAppellate Court was to confirm the sale, but by Mr. Justice Chatterjeas orderthe Munsifs order setting aside the sale is restored, until theauction-purchaser has convinced the District Judge at a second hearing of theappeal that it ought to be reversed. I hold, therefore, that the preliminaryobjection cannot be sustained and that the appeal does lie.

40. For the appellant it is urged that the reasons given byMr. Justice Chatterjea cannot be brought within any of the clauses of Section115, Civil Procedure Code. It is clear that Clauses (a) and (6) have noapplication. Can it be said that the learned District Judge "acted in theexercise of his jurisdiction illegally or with material irregularity" Thelearned Pleader for the respondent says that because the lower Appellate Courttreated the property as being one-third of the Taluk instead of two-thirds,there was no proper trial of the case. He stated this argument in several ways;that the learned Judge did not apply his mind to the case really before him;that he decided a case about the one-third share and not about the two-thirds share;that he did not try the judgment-debtors case at all. Stated in any form, theargument is, if I may use the epithet without offence, nothing but a speciousway of saying that the learned Judge made a very serious mistake, regarding theextent of the interest which had been sold. A mistake of fact, however, and awrong decision based on it, do not constitute illegality or irregularity. Ithink this view is in accordance with a recent decision of this Court ShewProsad Bungshidhur v. Ram Chunder Haribux 23 Ind. Cas. 977 : 41 C. 323 at. p.338 and with a decision by their Lordships of the Privy Council Amir HassanKhan v. Sheo Bakhsh Singh 11 C. 6 : 11 I.A. 237 : 4 S. P.C.J. 559 : Reriqyue& Jacksons P.C. No. 83 : 5 Ind. Dec. (N.S.) 760. In my opinion, therefore,the present case does not come within the scope of Section 115, Civil ProcedureCode.

41. For the respondent it is urged that if he cannot obtainrelief under Section 115, Civil Procedure Code, at any rate the provisions ofSection 15 of the High Courts Act are wide enough to cover his case. Attemptsare often made to put an elastic interpretation upon the wordsuperintendence. Personally I think the word should be construed verynarrowly. It is not necessary, however, to consider what meaning should begiven to it, for there is one fact in the present case which prevents therespondent from asking us to go beyond the provisions of the Civil ProcedureCode. That fact is his failure to apply to the lower Appellate Court for areview of judgment. It is clear that the respondent was aggrieved by a mistakeapparent on the face of the record", and if he had made a properapplication under Order XLVII he would, doubtless, have obtained relief.

42. Although I share Mr. Justice Chatterjeas sympathy forthe judgment-debtor, I think we cannot uphold his order. In my opinion theappeal should be allowed, the order directing the appeal to be re-heard by theDistrict Judge should be set aside, and the Rule obtained by thejudgment-debtor should be discharged. I, therefore, concur in the orders of thelearned Chief Justice.

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Kumar Chandra Kishore Roy Chowdhury vs. Basat Ali Chowdhury and Ors. (28.08.1917 - CALHC)