Case: Bathina Ramakrishna Reddy Vs. The State Of Madras

of subordinate Courts, so as to prevent grave injustice in non, appealable cases. This decision was, however, dissented from by the same High Court inEnat Mondul v. Baloram Dey, 3 Cal. W. N. 581, but was cited with approval by Lord-Williams J. inGulabchand Bangur v. Kabiruddin Ahmed, 58 Cal. -111. In these circumstances, it is worth-while recalling again to mind the decisions of the Privy Council on this subject and the limits stated therein for the exercise of jurisdiction conferred by this section on the High Courts.18. As long ago as 1894, inRajah Amir Hassan Khan v. Sheo Baksh Singh, 11 Ind. App. 237, the Privy Council made the following observations on s. 622 of the former Code of Civil Procedure, which was replaced by s.115 of the Code of 1908:"The question then is, did the Judges of the lower Courts in this case, in the exercise of their jurisdiction, act illegally or with material irregularity. It appears that they had perfect jurisdiction to decide the case, and even if they decided wrongly, they did not exercise their jurisdiction illegally or with material irregularity."In 1917 again inBalakrishna Udayar v. Vasudeva Aiyar, 44 Ind. App. 261, the Board observed:"It will be observed that the section applies to jurisdiction alone, the irregular exercise or non-exercise of it or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved."In 1949, inVenkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras, 76 Ind. App. 67, the Privy Council again examined the scope of s. 115 and observed that they could see no justification for the view that the section was intended to authorise the High Court to interfere and correct gross and palpable errors of subordinate Courts so as to prevent grave injustice in non-appealable cases and that it would be difficult to formulate any standard by which the degree of error of subordinate Courts could be measured. It was said :"Section 115 applies only to cases in which no appeal lies, and, where the Legislature has provided no right of appeal, the manifest intention is that the order of the trial Court, right or wrong, shall be final. The section empowers the High Court to satisfy itself on three matters, (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction: and (c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing same error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied on those three matters, it has no power to interfere because it differs, however profoundly, from the conclusions of the subordinate Court on questions of fact or law."19. Later in the same year inJoy Chand Lal Babu v. Kamalaksha Chaudhury, 76 Ind. App. 131, their Lordships had again adverted to this matter and reiterated what they had said in their earlier decision. They pointed out :"There have been a very large number of decisions of Indian High Courts on S. 115 to many of which their Lordships have been referred. Some of such decisions prompt the observation that High Courts have not always appreciated that although error in a decision of a subordinate Court does not by itself involve that the subordinate Court has acted illegally or with material irregularity so as to justify interference in revision under sub-s. (c), nevertheless, if the erroneous decision results in the subordinate court exercising a jurisdiction not vested in it by law, or falling to exercise a jurisdiction so vested, a case for revision arises under sub-s. (a) or sub-s. (b) and sub-s.(c) can be ignored."20. Reference may also be made to the observations of Bose J. in his order of reference inNarayan Sonaji v. Sheshrao Vithoba, A. I. R. 1948 Nag. 258 wherein it was said that the words "illegally" and "material irregularity" do not cover either errors of fact or law. They do not refer to the decision arrived at but to the manner in which it is reached. The errors contemplated relate to material defects of procedure and not to errors of either law or fact after the formalities which the law prescribes have been complied with.21. We are therefore of the opinion that in reversing the order of the executing Court dated 25-4-1945 reviving the execution, the High Court exercised jurisdiction not conferred on it by s. 115 of the Code. It is plain that the order of the Subordinate Judge dated 25-4-1945 was one that he had jurisdiction to make, that in making that order he neither acted in excess of his jurisdiction nor did he assume jurisdiction which he did not possess. It could not be said that in the exercise of it he acted with material irregularity or committed any breach of the procedure laid down for reaching the result. All that happened was that he felt that he bad committed an error in dismissing the main execution while he was merely dealing with an adjournment application. It cannot be said that his omission in not taking into consideration what the decree-holders pleader would have done had he been given the opportunity to make his submission amounts to material irregularity in the exercise of jurisdiction. This speculation was hardly relevant in the view of the case that he took. The Judge had jurisdiction to correct his own error without entering into a discussion of the grounds taken by the decree-holder or the objections raised by the judgment-debtors. We are satisfied therefore that the High Court acted in excess of its jurisdiction when it entertained an application in revision against the order of the Subordinate Judge dated 25-4-1945 and set it aside in exercise of that jurisdiction and remanded the case for further enquiry.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]13. It is unnecessary to consider all the points taken in these appeals because, in our opinion, the point canvassed on behalf of the decree-holder that the order of remand was without jurisdiction and that all the proceedings taken subsequent to the order of the executing Court reviving the execution were void, has force. The sole ground on which the Subordinate Judge had ordered restoration of the execution was that he had himself made a sad mistake in dismissing it at the same time that he dismissed the adjournment application without informing the decree-holders counsel that the request for adjournment had been refused and without calling upon him to state what he wanted done in the matter in those circumstances. As the Subordinate, Judge was correcting his own error in the exercise of his inherent powers, it was not necessary for him to investigate into the correctness of the various allegations and counter allegations made by the parties. He was the best judge of the procedure that was usually adopted in his Court in such cases and there is no reason whatsoever for the supposition that when the Subordinate Judge said that he had not given any opportunity to the decree-holders pleader to take any steps in execution of the decree after the dismissal of the adjournment application he was not right. It Could not be seriously suggested that such an opportunity was given to the decree-holder, the dismissal order of the execution having been made at the same moment of time as the order dismissing the application for adjournment. It is quite clear that the interests of justice demanded that the decree-holders pleader should have been informed that his request for adjournment had been refused, and further given opportunity to state what he wanted, done in that situation. It was wholly unnecessary in such circumstances to speculate what the pleader would have done when faced with that situation. The solid fact remains that he was not given that opportunity and that being so, the order dismissing the execution was bad and was rightly corrected by the Court on its own initiative in the exercise of its inherentis plain that the High Court had no jurisdiction in the exercise of its appellate jurisdiction to reverse this decision. In the remand order itself, it was held that it was difficult to say that the order by itself amounted to final determination of any question relating to execution, discharge or satisfaction of a decree and that being so, it did not fall within the ambit of s. 47, Civil P. C. We are in entire agreement with this observation. The proceedings that commenced with the decree-holders application for restoration of the execution and terminated with the order of revival can in no sense be said to relate to the determination of any question concerning the execution, discharge or satisfaction of the decree. Such proceedings are in their nature collateral to the execution and are independent of it.15. It was not contended and could not be seriously urged, that an order under s. 151 simpliciter is appealable. Under the Code of Civil Procedure, certain specific orders mentioned in s. l04 and O. 43, R. 1 only are appealable and no appeal lies from any other orders (Vide s. 105, Civil P. C.). An order made under s. 151 is not included in the category of appealable orders.We are therefore of the opinion that in reversing the order of the executing Court dated 25-4-1945 reviving the execution, the High Court exercised jurisdiction not conferred on it by s. 115 of the Code. It is plain that the order of the Subordinate Judge dated 25-4-1945 was one that he had jurisdiction to make, that in making that order he neither acted in excess of his jurisdiction nor did he assume jurisdiction which he did not possess. It could not be said that in the exercise of it he acted with material irregularity or committed any breach of the procedure laid down for reaching the result. All that happened was that he felt that he bad committed an error in dismissing the main execution while he was merely dealing with an adjournment application. It cannot be said that his omission in not taking into consideration what the decree-holders pleader would have done had he been given the opportunity to make his submission amounts to material irregularity in the exercise of jurisdiction. This speculation was hardly relevant in the view of the case that he took. The Judge had jurisdiction to correct his own error without entering into a discussion of the grounds taken by the decree-holder or the objections raised by the judgment-debtors. We are satisfied therefore that the High Court acted in excess of its jurisdiction when it entertained an application in revision against the order of the Subordinate Judge dated 25-4-1945 and set it aside in exercise of that jurisdiction and remanded the case for further enquiry.