Title: Keshardeo Chamria vs Radha Kissen Chamria And Othersradha ... on 30 October, 1952

Supreme Court of India
Keshardeo Chamria vs Radha Kissen Chamria And Othersradha ... on 30 October, 1952
Equivalent citations: 1953 AIR 23, 1953 SCR 136, AIR 1953 SUPREME COURT 23, 1966 MADLW 188
Author:
Mehr Chand Mahajan
Bench:
Mehr Chand Mahajan
,
Vivian Bose
,
Ghulam Hasan
PETITIONER:
KESHARDEO CHAMRIA

	Vs.

RESPONDENT:
RADHA KISSEN CHAMRIA AND OTHERSRADHA KISSEN CHAMRIA AND OTHE

DATE OF JUDGMENT:
30/10/1952

BENCH:
MAHAJAN, MEHR CHAND
BENCH:
MAHAJAN, MEHR CHAND
DAS, SUDHI RANJAN
BOSE, VIVIAN
HASAN, GHULAM

CITATION:
 1953 AIR   23		  1953 SCR  136
 CITATOR INFO :
 RF	    1956 SC 391	 (39)
 R	    1959 SC 492	 (19)
 E&D	    1964 SC1336	 (8)
 R	    1971 SC2324	 (7)
 R	    1975 SC 794	 (6)
 RF	    1981 SC 707	 (5)
 R	    1988 SC1531	 (104)


ACT:
Civil Procedure Code (Act V of 1908), ss. 47,115, 151-Execu-
tion proceedings-Dismissal of adjournment petition-Dismissal
of execution case also by same order without asking  pleader
what  he  has  to say-Restoration  of  case  under  inherent
powers-Appeal and revision petition to High Court from order
of  restoration-Maintainability of  appeal-Interference	 by,
High  Court in revision-Legality-Revisional powers  of	High
Court-Appeal from orders made under inherent powers.



HEADNOTE:
A  Subordinate Judge dismissed an application by  a  decree-
holder for adjournment of an execution case and by the	same
order dismissed the execution case itself without  informing
the  decree.  holder's	pleader	 that  the  application	 for
adjournment had been dismissed and asking him whether be had
to make any submission in
			    137
the  matter of the execution case, and	 an application	 for
restoration of the execution case setting aside the order of
dismissal,  the	 Subordinate  Judge,  finding  that  he	 had
committed  an error which had resulted in denial of  justice
restored the execution case in the exercise of the  inherent
powers of the court under s. 151, Civil Procedure Code.	 The
judgment-debtor preferred an appeal and an application,	 for
revision  to  the High Court against this order.   The	High
Court  held  that the appeal was not  maintainable  but	 set
aside the order of the Subordinate Judge in the exercise  of
its   revisional  powers  and  remanded	 the  case  to	 the
Subordinate  Judge  for	 fresh	disposal  after	 considering
whether it would have been possible for the decree-holder to
take  any  further steps in connection	with  the  execution
application  after  the	 dismissal of  the  application	 for
adjournment:
Held, (i) that the order of the Subordinate Judge dismissing
the  execution	case without giving an	opportunity  to	 the
decree	holder's pleader to state what he had to  say	 the
case  itself was bad and was rightly set aside by the  court
its own initiative in exercise of its inherent powers.
(ii)The	 High Court had no jurisdiction in the	exercise  of
its appellate  powers to reverse the order of restoration as
that order by itself did not amount to a final determination
of   any  question  relating  to  execution,  discharge	  or
satisfaction  of  a  decree within the meaning	of  s.	-47,
Criminal  Procedure  Code
, and an order made under  s.	151,
Criminal  Procedure Code
, simpliciter is not  an  appealable
order.
Akshia	Pillai	v. Govindarajulu Chetty	 (A.I.R.  1924	Mad.
778),  Govinda Padayachi v. Velu Murugiah  Chettiar  (A.I.R.
1933 Mad. 399) and  Noor Mohammad v. Sulaiman  Khan  (A.I.R.
1943 Oudh 35)  distinguished.
(iii)As	 the order of the Subordinate Judge was one that  he
had  jurisdiction  to-make, and as he had,  in	making	that
order,	neither acted in excess of his jurisdiction or	with
material irregularity nor committed any breach of procedure,
the   High   Court  acted  in  excess  of   its	  revisional
jurisdiction  under  s. 115, Civil Procedure Code,  and	 the
order of remand and all proceedings taken subsequent to that
order were illegal.
Section	 115
,  Civil Procedure Code, applies to	 matters  of
jurisdiction  alone, the irregular exercise or	non-exercise
of it or the illegal assumption of it, and if a	 subordinate
court had jurisdiction to make the order it has made and has
not acted in breach of any provision of law or committed any
error  of procedure which is material and may have  affected
the  ultimate  decision,  the High Court  has  no  power  to
interfere,  however  profoundly	 it  may  differ  from	 the
conclusions of that court   questions of fact or law.
     Rajah Amir Hassan Khan v. Sheo Baksh Singh (1883-83) 11
I.A.  237, Bala Krishna Udayar v. Vasudeva Aiyar  (1917)  44
IA. 261, Venkatagiri Ayyangar v. Hindu Religious  Endowments
Board
138
1949) 76 I.A. 67, Joy Chand Lal Babu v. Kamalaksha Chowdhury
1949)76	 I.A.131  and  Narayan Sonaji  v.  Sheshrao  Vithoba
(I.L.R. 1948] Nag. 16) referred to.
Mohunt	Bhagwan	 Ramanuj Das v. Khettar	 Moni  Dassi  (1905)
C.W.N. 617 and Gulab Chand Bargur v. Kabiruddin Ahmed (1931)
58 Cal. 111, dissented from.



JUDGMENT:
CIVIL  APPELLATE JURISDICTION: Civil Appeals Nos. 12 and  13
of 1951.
Appeals	 from  the Judgment and Decree dated  the  17th/21st
February, 1947, of the High Court of Judicature at  Calcutta
(Mukherjea and Biswas JJ.) in Appeal from Original Order No.
62 of 1946 with cross-objectiou and Civil Revision Case	 No.
657 of 1946 arising out of Judgment and Order dated the 13th
March, 1946, of the Court of the Subordinate Judge,  Howrah,
in Title Execution Case No. 68 of 1936.
M.   C.	  Setalvad   (Attorney-General	 for   India)	 and
Purushottam Chatterjee (S.  N. Mukherjee, with them) for the
appellant  in Civil Appeal No. 12 of 1951 and respondent  in
Civil Appeal No. 13 of 1951.
C.   K. Daphtary (Solicitor-General for India) and N.  C.
Chatterjee (C.	N. Laik and A. C. Mukherjea, with them)	 for
the  respondents  in  Civil  Appeal  No.  12  of  1951	 and
appellants in Civil Appeal No. 13 of 1951.
1952.  October 30.  The judgment of the Court was  delivered
by
MAHAJAN J.-These are two cross-appeals from the decision  of
the  High  Court at Calcutta in its  appellate	jurisdiction
dated  17th  February,	1947, modifying	 the  order  of	 the
Subordinate  Judge of Howrah in Title Execution Case No.  68
of 1936.
The litigation culminating in these appeals comnmenced about
thirty	years  ago.   In the year  1923,  one  Durga  Prasad
Chamria	 instituted  a suit against the	 respondents,  Radha
Kissen	Chamria, Motilal Chamria and their  mother  Anardevi
Sethan	(since	deceased)  for specific	 performance  of  an
agreement,
139
for sale of an immoveable property in Howrah claiming a	 sum
of  Rs.	 11,03,063-8-3	and other reliefs.   The  suit,	 was
eventually  decreed    compromise   the	 19th  April,  1926.
Under the compromise decree the plaintiff became entitled to
a sum of Rs. 8,61,000 from the respondents with interest  at
61  per	 cent.	with yearly rests from the  date  fixed	 for
payment	 till  realization.  Part of the  decretal  sum	 was
payable	   the	execution of the solenama and  the  rest  by
instalments within eighteen months of that date.
Within	fifteen months from the date of the decree a sum  of
Rs.  10,00,987-15-6  is	 said  to  have	 been  paid  towards
satisfaction  of  it.	No steps were taken  either  by	 the
judgment-debtors or the decre-holder regarding certification
of most of those payments within the time prescribed by law.
The judgment-debtors after the expiry of a long time made an
application   for   certification  but	 the   decree-holder
vehemently  resisted it and declined to'admit the  payments.
The  result was that the court only recorded the payment  of
the last three instalments which had been made within ninety
days  before the application and the judgmentdebtors had  to
commence  a  regular  suit  against  the  decree-holder	 for
recovery  of  the  amounts paid, and  not  admitted  in	 the
execution proceedings.	In the year 1929 a decree was passed
in  favour  of the judgment-debtors for the amount  paid  by
them  and not ,certified in the execution.  In the  meantime
the decree-holder had realized further amounts in  execution
of  the decree by taking out execution proceedings   two  or
three  occasions.   The amount for which a decree  had	been
passed	 against  the  decree-holder  was  also	  thereafter
adjusted towards the amount duo under' the consent decree.
   On	the  17th March, 1933, the decree was  assigned	 by
Durga  Prasad  to  the	appellant  Keshardeo  Chamria.	 The
execution proceedings out of which these appeals arise	were
started	 by the assignee   the 10th October, 1936,  for	 the
realization  of	 Rs. 4,20,693-8-9 and  interest	 and  costs.
This  execution had a chequered career.	 To begin with,	 the
judgment-debtors raised
140
an  objection  that the assignee being a mere  benamidar  of
Durga  Prasad  Chamria	had  no locus  standi  to  take	 out
execution.  This dispute eventually  ended in favour of	 the
assignee after about five years' fight and it was held	that
the  assignment	 was  bonafide	and  Keshardeo	was  not   a
benamidar of the decree-holder.
On  the 17th July, 1942, Keshardeo made an application for
attachment of various new properties of the judgment-debtors
and  for their arrest.	Another set of objections was  filed
against	 this  application  by	Radha  Kissen  Chamria.	  He
disputed  the  correctness  of	the  decretal  amount,	 and
contended  that a certain payment of Rs. 1,60,000 should  be
recorded and certified as made	-the 28th May, 1934, and not
the date the sum was actually paid to the decreeholer.	This
objection  was decided by the Subordinate Judge	   the	11th
September,  1942, and it was held that the  judgment-debtors
were liable to pay interest   the sum of Rs. 1,60,000 up  to
the  12th October, 1936, and not up to the 4th	July,  1941,
'as claimed by the assignee.	appeal the High Court by its
judgment  dated	 the  22nd June, 1943,	upheld	the  decree-
holder's  contention,  and ruled that  the  judgment-debtors
were liable to pay interest up to the 4th July, 1941,	this
sum of Rs. 1,60,000.  The judgment-debtors then applied	 for
leave  to appeal to the Privy Council against this  decision
and  leave  was	 granted.    the  13th	February,  1945,  an
application  wag  made to withdraw the appeals,	 and  with-'
drawal	was allowed by an order of the court dated the	20th
February,   1945.   Thus  the  resistance  offered  by	 the
judgment-debtors  to the decree-holder's application of	 the
17th July, 1942, ended	 the 20th February, 1945.
The records of the execution case were then sent back
by  the High Court and reached the Howrah Court	   the	28th
February, 1945.	 The decreeholder's counsel was informed  of
the arrival of the records by an order dated the 2nd  March,
1945.	The hearing of the case was fixed for the 5th  March
1945.	  the 5th March, 1945 the court made  the  following
order;-
141
Decree-holder  prays for time to take necessary steps.	 The
case  is adjourned to 10th March, 1945, for order.   Decree-
holder to take necessary steps by, that date positively.  "
The  decree-holder applied for further adjournment,  of	 the
case  and    the  10th the court passed an  order  in  these
terms:-
"Decree-holder	prays  for  time' again	 to  give  necessary
instructions to his pleader for taking necessary steps.	 The
'petition  for	time  is rejected.  The	 execution  case  is
dismissed   part satisfaction.	"
When the decree-holder was apprised of this order, he,	 the
19th  March,  1945, made an application under
section	151
,
Civil  Procedure Code, for restoration of the execution	 and
for   getting	aside  the  order  of	dismissal.	this
application  notice was issued to the  judgment-debtors	 who
raised	a number of objections against	the  decree-holder's
petition  to  revive the execution.  By an order  dated	 the
25th April, 1945, the Subordinate Judge granted the  decree-
holder's  prayer and ordered restoration of  the  execution.
The operative part of the order is in these terms:-
"	  10th March, 1945, the decree-holder again  prayed
for time for the purpose of giving necessary instructions to
his pleader for taking steps.  That petition was rejected by
me.	10th  March,, 1945, by the same	  order-I  mean	 the
order rejecting the petition for adjournment-I dismissed the
'execution  -case   part satisfaction. The  learned  counsel
behalf	of  the present petitioner wants me  to	 vacate	 the
order  by which I have dismissed the execution	case	part
satisfaction.  He has invoked the aid of
section 151
,  Civil
Procedure  Code,:  for cancellation of this  order  and	 the
consequent  restoration	 of  the execution  case.   I  would
discuss at the very outset as to whether I was justified  in
dismissing  the,execution  case	 in  the  same	 order,after
rejecting the petition of the decree-holder for an
142
adjournment without giving him an opportunity to his pleader
to  make  any  submission he might have to  make  after	 the
rejection  of the petition for time.  It is clear  from	 the
order that the fact that the petition for time 'filed by the
decree-holder	10th March, 1945, was rejected by me was not
brought to the notice of the pleader for the  decree-holder.
It  seems  to  me that there was denial of  justice  to	 the
decree-holder  in the present execution proceeding  inasmuch
as it was a sad omission   my part not to communicate to his
pleader	 the result of this petition he made praying for  an
adjournment  of	 this execution proceeding and at  the	same
time,  to  dismiss the execution  case	  part	satisfaction
which  has brought about consequences highly prejudicial  to
the  interest  of the decree-holder.  I think
section	151
,
Civil Procedure Code, is the only section which. empowers me
to  rectify  the  said	omission I have	 made  in  not	com-
municating  to the pleader for the decree-holder as  to	 the
fate of his application for an adjournment of the  execution
case  and  as  such I would vacate the order  passed  by  me
dismissing the execution case	part satisfaction.  The ends
of   justice  for  which  the  court  exists   demand	such
rectification  and  I  would do it.  The  learned  Advocate-
General	   behalf  of the judgment-debtor Radha	 Kissen	 has
argued	before	me that this court has	no  jurisdiction  to
vacate the order passed by me	10th March, 1945, dismissing
the  execution	case   part satisfaction.  His	argument  is
that
section  48
, Civil Procedure Code, stands	 in  my	 way
inasmuch  as the law of limitation as provided in the  above
section debars the relief as sought for by the decree-holder
in the present application.  I do not question the soundness
of  this argument advanced by the learned  Advocate-General.
The  facts  of	this case bring home the fact  that  in	 the
present case I am rectifying a sad omission made by me which
brought about practically a denial of justice to the decree-
holder	and  as	 such the operation  of
section  48
,  Civil
Procedure  Code,  does	not come to the	 assistance  of	 the
judgment-debtor Radha Kissen,"
143
It would have saved considerable expense and trouble to	 the
parties	 had the dismissal for default chapter	been  closed
for  ever  by  this order of  the  Judge;  the	proceedings,
however,  took	a different course.  A	serious	 controversy
raged  between	the parties about the  correctness  of	this
obviously just order and after seven years it is now  before
us.   An  appeal and a revision were preferred to  the	High
Court  against	this  order.  By  its  judgment	 dated	24th
August, 1945, the High Court held that no appeal lay against
it as the question involved did not fall within the ambit of
section 47
, Civil Procedure Code.  It, however,	 entertained
the  revision application and allowed it, and  remanded	 the
case  to  the  Subordinate  Judge  for	reconsideration	 and
disposal  in  accordance with the observations made  in	 the
order.	 The High Court took the view that  the	 Subordinate
Judge was in error in restoring the execution without taking
into  consideration  the point whether	the  decree-holder's
pleader	 could really take any step in aid of the  execution
if he had been apprised of the order of the court dismissing
the  adjournment application.  This is what the	 High  Court
said:-
"The ground put forward by the Subordinate Judge in  support
of his order for restoration is that the order rejecting the
adjournment  petition should have been communicated  to	 the
pleader	 for  the decree-holder but this was not  done.	  We
will  assume  that this was an omission	  the  part  of	 the
court.	The question now is whether it was possible for	 the
decree-holder  to take any further steps in connection	with
the  execution	of  the	 decree	 and  thereby  prevent	 the
execution  case	 from  being  dismissed	 for  default.	  No
evidence was taken by the learned Subordienate Judge	this
point  and  even  the  pleader who  was	 in  charge  of	 the
execution  case	   behalf  of  the  decree-holder  was	 not
examined............ If really the decree-holder was not  in
a position to state   that day as to what was the amount due
under  the  decree for which he wanted the execution  to  be
levied	and  if	 according  to	him  it	 required  elaborate
accounting for the purpose
144
of  arriving at the proper figure, it was not  possible	 for
him  to	 ask  the  court to issue  any	process	 by  way  of
attachment of the property   that date.	 It seems to us that
the  learned  Judge  should  have  considered  this   matter
properly  and he should have found   proper material  as  to
whether the decree-holder could really take any steps  after
the application for adjournment was disallowed."
In  sharp contrast to the opinion contained in the order  of
remand	is the view now expressed by the High  Court	this
point in its final judgment under appeal
"One  important circumstance which, in our opinion  ;  tells
'in  favour of the decreeholder is the fact we have  noticed
before,	 namely,  that	after the'  petition  for  time	 was
rejected  the  court did not call   the execution  case	 and
otherwise  intimate  its decision to go	  with it.   In	 one
sense  this,might be regarded as a mere error  of  procedure
the  part of the court which it would be wrong to allow	 the
decreeholder to take advantage of, but an, error it was,  as
was admitted by the learned judge himself who had dealt with
the matter, and we do not think his opinion, can be  lightly
brushed aside.	There can be no doubt that the learned judge
was  in	 the best position to speak-as	regards	 the  actual
proceedings in his court %  the 10th March, 1945, and if  he
thought	 that it amounted to a 'denial of justice'  to	have
rejected  the  petition for time and by the  same  order  to
dismiss the ,execution case, it is not for us to say that he
was  not  right.  It may well be that even if the  case	 was
called	-  the decree-holder's pleader would even then	have
been  absent,  but  having  regard  to	all  the  facts	 and
circumstances of the case, we think the court might yet give
the  decree-holder the benefit of doubtin this	matter,	 and
assume	in his favour that his pleader would  have  appeared
before	the learned, judge and tried to avert  a  peremptory
dismissal  of  the  execution case, even though	 he  or	 his
client	might not have been fully ready with  all  necessary
materials for continuing the execution proceeding.
145
As	we have pointed out before and as the  court  below
has also found, it was possible,for the decreeholder or	 his
pleader	 to  have submitted to the court,  some	 sort,of  an
account	 of the decretal dues	that date after	 refusal  of
the adjournment but even if this could not be done, we still
believe	 that the pleader, if he appeared, could  have	done
something,  either by drawing the court's attention to	some
of its previous orders or otherwise, by which a dismissal of
the case might be prevented."
It was not difficult to envisage what the counsel would have
done  when  faced  with such a	dilemma.   He,	would.	have
straightaway stated that the execution should issue, for  an
amount,which  was roughly known to' him, and that the  court
should,issue  a	 process, for the arrest  of  the  judgment-
debtors.   BY  such  a statement he  would  have  saved	 the
dismissal  without  any,detriment to his client:  who  could
later  make another application stating the  precise  amount
due and praying for additional reliefs.
After remand   the 13th March, 1946, the learned Subordinate
Judge  restored	 the execution case in respect of a  sum  of
Rs.92,OOO  only	 and maintained the order  of  dismissal  in
other respects.	 He held that the decree-holder was  grossly
negligent on  the 5th and the 10th March, 1945, and that due
to  his	 -negligence  the execution case  was  dismissed  in
default	 that even if his pleader had been informed  of	 the
order rejecting the application for adjournment he could not
have taken any steps to prevent the dismissal of the  execu-
tion; that the execution being now barred by limitation	 the
judgment-debtors  should  not be deprived  of  the  valuable
rights acquired by them but at the same time they should not
be allowed to retain the advantage of an acknowledgment of a
debt of Rs, 92,000 made by the decree-holder.
Both   the  decree-holder  and	the  judgment-debtors	were
dissatisfied  with this order.	The decree-holder  preferred
an  appeal to the High Court and also filed  an	 application
under
section 115
, Civil Procedure
146
Code.	The judgment-debtors filed cross objections  in	 the
appeal	and  also preferred an	alternative  application  in
revision.
The  appeal,  the  cross-objections  and  the  two  revision
'applications were disposed of together by the High Court by
its   judgment	dated  17th  February,	1947.	 The   order
dismissing  the execution in default was set aside  and	 the
case  was  restored    terms.	The  decreeholder  was	held
disentitled  to	 interest   the decretal  amount  from	10th
March,	1945,  to  the date of final  ascertainment  of	 the
amount	of  such  interest by the executing  court  and	 was
ordered to pay to the judgment-debtors a consolidated sum of
Rs. 20,000 by way of compensatory costs.  He was to pay this
amount	to  the	 judgment-debtora within two  weeks  of	 the
arrival	 of  the records in the executing court or  have  it
certified  in the execution.  In default the appeal  was  to
stand dismissed with costs and the cross-objections  decreed
with costs.
An application for leave to appeal to His Majesty in Council
against	 this  order was made by  the  judgment-debtors	 and
leave  was  granted to them   30th May, 1947.	The  decree-
holder	also  applied  for leave and he	 was  granted  leave
27th  June, 1946.  Both the appeals were consolidated by  an
order of the court dated 4th December, 1947, and  thereafter
the appeals were transferred to this court.
On   behalf of the decree-holder it was contended  that	 the
High  Court was wrong in allowing the  judgment-debtors	 Rs.
20,000	by  way of compensation for costs, and	that  having
regard	to  the	 terms of the compromise decree	 it  had  no
jurisdiction  to deprive the decree-holder of  the  interest
allowed to him by the decree, and that it had neither  power
nor jurisdiction under
section 115
, Civil Procedure Code, to
set  aside the order dated 25th April, 1945, passed  by	 Mr.
Chakravarti,  Subordinate  Judge, under
section 151
of	 the
said  Code  and that the interlocutory remand order  of	 the
High  Court  being  without  jurisdiction.,  all  subsequent
proceedings taken thereafter were null and void.
147
The  earned  counsel  for  the	judgment-debtors  not	only
supported  the judgment of the High Court to the  extent  it
went  in  their	 favour but contended that  the	 High  Court
should have refused to restore the execution altogether	 and
that  the  assumption made by it  that	the  decree-holder's
pleader	 could do something to prevent the dismissal of	 the
case  or could present some sort of statement to  the  court
was wholly unwarranted and unjustifiable.  It was urged that
it ought to have been held that the decree-holder was guilty
of  gross negligence and he was himself responsible for	 the
dismissal  of  the case, and that it was  not  necessary  to
formally call	the case after the rejection of the petition
for adjournment and that a valuable right having accrued  to
the judgment-debtors by efflux of time, they should not have
been  deprived of it in the exercise of the inherent  powers
of the court.
It is unnecessary to consider all the points taken in  these
appeals	 because,  in  our  opinions  the  point   canvassed
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   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-holder's  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
148
the  decree-holder's 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
interest  of  justice  demanded	 that  the   decree-holder's
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.
I  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
its own initiative in the exercise of its inherent powers.
The  point for determination then is whether such  an  order
could be set aside by the High Court either in the  exercise
of its appellate or revisional powers.	It is plain that the
High  Court  bad  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 a 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
section 47
Civil Procedure Code.  We are
in entire agreement with this observation.  The	 proceedings
that  commenced	 with the decree-holder's  -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.
It was not contended and could not he seriously urged	that
an order under
section	151
simpliciter is
149
appealable.   Under
the  Code of  Civil  Procedure
certain
specific  orders mentioned in
section 104
and  Order  XLIII,
rule  1,  only are appealable and no appeal  lies  from	 any
other orders. (Vide
section 105
, Civil	Procedure Code).  An
order made under action 151 is not included in the  category
of appealable orders.
In  support  of	 his contention that  an  order	 made  under
section 151
may in certain circumstances be appealable,	 Mr.
Daphtary placed reliance   two single Judge judgments of the
Madras	High  Court and	  a Bench decision  of	Oudh.  [
Vide
Akshia Pillai v. Govindarajulu Chetty
(1);
Govinda  Padayachi
v.  Velu  Murugiah Chettiar
(2); Noor  Mohammad	v.  Sulaiman
Khan(1)].   In all these cases execution sale had  been	 set
aside by the court in exercise of inherent powers and it was
held  that  such orders were appealable.
The ratio  of	 the
decision in the first Madras case is by no means very  clear
and  the  reasoning is somewhat dubious.  In the  other	 two
cases the orders were held appealable	the ground that they
fell  within the ambit of
section 47
, Civil Procedure  Code,
read  with
section 151
.  It is unnecessary to	examine	 the
correctness of these decisions as they have no bearing	 the
point  before us,' there being no analogy between  an  order
setting	 aside an execution sale and an order setting  aside
the  dismissal of an application.  The High Court  was	thus
right in upholding the preliminary objection that no  appeal
lay  from  the	order of the Subordinate  Judge	 dated	25th
April, 1945.
We now proceed to consider whether a revision was  competent
against	 the order of the 25th April, 1945, when  no  appeal
lay.   It  seems to us that in this matter really  the	High
Court  entertained  an appeal in' the guise of	a  revision.
The revisional' jurisdiction of the High Court is set out in
the  115th section
of the Code of Civil Procedure
in  these
terms:-
(I) A.I.R. 31924 Mad. 778.  (3) A.I.R. 1943 Oudh  35.
(2)  A.I.R. 1933 Mad. 399
20
150
"The  High Court may call for the record of any	 case  which
has been decided by any court subordinate to such High Court
and  in	 which appeallies thereto, and if  such	 subordinate
court appears:
(a)  to	 have exercised a jurisdiction not vested in  it  by
law, or
(b)  to have failed to exercise a jurisdiction so vested, or
(e)  to	 have  acted  in the exercise  of  its	jurisdiction
illegally or with material irregularity, the High Court	 may
make 'such order in the case as it thinks fit.,,
      A	 large number of cases have been collected  in	the
fourth	edition of Chitaley & Rao's
Code of Civil  Procedure
(Vol.	I),  which only serve to show that the	High  Courts
have  not always appreciated the limits of the	jurisdiction
conferred by this section.  In Mohunt Bhagwan Ramanuj Das v.
Khetter Moni Dassi(1), the High Court of Calcutta  expressed
the opinion that sub-clause (c.) of
section 115
, Civil	Pro-
cedure	Code, was intended to authorize the High  Courts  to
interfere.   and  correct  gross  and  palpable	 errors	  of
subordinate courts, so as to prevent grave injustice in non-
appealable  cases.   This decision was,	 however,  dissented
from  by  the  same High Court in  Enat	 Mondul	 v.  Baloram
Dey(2), but was cited with approval by Lort-Williams J.,  in
Gulabohand   Bangur  v.	 Kabiruddin  Ahmed
(1).	  In   these
circumstances  it is worthwhile recalling again to mind	 the
decisions  ,of	the  Privy Council   this  subject  and	 the
limits	stated	therein	 for the  exercise  of	jurisdiction
conferred by this section   the High Courts.
    As long ago as 1894, in Hajah Amir Has8an Khan'v.  Sheo
Baksh  Singh(1),  the  Privy  Council  made  the   following
observations	section	 622  of the former
Code  of  Civil
Procedure
, which was replaced by
section 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
(I) (1897) I C.W.N. 617.  (3) (1931) I.L.R. 58 Cal.  III.
(a) (1899)  C.W.N 581.	(4) (1883-84) L.R. xi I.A. 237.
151
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 in Balakrishna Udayar v.	 Vasudeva  Aiyar(1),
the-Board observed:-
"It   will   be	 observed  that	 the  section	applies	  to
jurisdiction alone, the irregular exercise or nonexercise 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  -in
Venkatagiri  Ayyangar  v.  Hindu   Religious
Endowments   Board,  Madras
(1),	 the  Privy  Council   again
examined  the  scope of
section 115
and observed  that	they
could see no justification for the view that the section was
intended  to  authorize	 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 err-or 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	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 some 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   those three matters,, it has no
(1) (1917) L.R. 44 I,A. 26i.
(2) (1949) L.R. 76 I.A. 67.
power  to interfere because it differs, however	 profoundly,
from the conclusions of the subordinate court	questions of
fact or law."
Later  in the same year in Joy Chand Lal Babu v.  Kamalaksha
Choudhury(1),  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
section 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-section	(c),
nevertheless, if the erroneous decision results in the	sub-
ordinate court exercising a jurisdiction not vested in it by
law,  or  failing to exercise a jurisdiction so,  vested,  a
case for revision arises under subsection (a) or  subsection
(b) and sub-section (c) can be ignored."
Reference may also be made to the observations of Bose J. in
his  order  of	reference  in  Narayan	Sonaji	v.  Sheshrao
Vithoba(2)  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.
We are therefore of the opinion that in reversing the  order
of the executing court dated the 25th April, 1945,  reviving
the  execution,	 the High Court exercised  jurisdiction	 not
conferred   it by
section 116
of the Code.  It is plain that
the  order of the Subordinate Judge dated the 25th April,  .
1945,  was  one that he had jurisdiction to  make,  that  in
making	that  order  he	 neither acted	in  excess,  of	 his
jurisdiction
(I) (I949) T .R . 76 J. A. 131.
(2) A.I.R. 1948 Nag. 258.
153
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 be had 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-
holder's  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 the 25th April, 1945, and set it
aside in exercise of that jurisdiction and remanded the case
for further enquiry.
The	 result therefore is that Appeal No. 12 of 1951	 is
allowed, as the interlocutory remand order of the High Court
was  one  without  jurisdiction	 and  that  being  so,	 the
subsequent proceedings taken in consequence of it, viz., the
order of the Subordinate Judge restoring the application for
execution to the extent of Rs. 92,000, and the further order
of  the	 High Court   appeal restoring	the  execution	case
terms,	are null and void and have to be set aside  and	 the
order  of  the executing court dated the 25th  April,  1945,
restored.   We order accordingly.  Appeal No. 13 of 1951  is
dismissed.
In  the  peculiar circumstances of this case	 we  direct
that the parties be left to bear their own costs throughout,
that  is,  those incurred by them in the High Court  in	 the
proceedings  which  terminated with the	 remand	 order,	 the
costs  incurred	 in the subordinate court after	 the  remand
order, and the costs there after
154
incurred  in the High Court and those incurred in this court	 i
n
these appeals.
Appeal No. 12 allowed.
Appeal No. 13 dismissed.
I Agent for the appellant in C. A. No. 12 and respondent  in
C.A. No. 12: P. K. Chatterjee.
Agent for the respondents in C. A. No. 12 and appellants  in
C. A. No. 13: Sukumar Ghose.