Keshardeo Chamria vs Radha Kissen Chamria And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Not extracted

Decision Date: 30 October, 1952

Coram: Mehr Chand Mahajan, Vivian Bose, Ghulam Hasan

The case titled Keshardeo Chamria versus Radha Kissen Chamria and Others was decided on 30 October 1952 by the Supreme Court of India. The judgment was authored by Justice Mehr Chand Mahajan, who sat with Justices Vivian Bose and Ghulam Hasan. The parties were identified as the petitioner, Keshardeo Chamria, and the respondents, Radha Kissen Chamria and others. The decision was reported in the 1953 law reports as AIR 23 and SCR 136, and it has been subsequently cited in numerous later reports, including RF 1956 SC 391, R 1959 SC 492, E & D 1964 SC 1336, R 1971 SC 2324, R 1975 SC 794, RF 1981 SC 707, and R 1988 SC 1531. The statutory provisions central to the dispute were sections 47, 115 and 151 of the Civil Procedure Code, Act V of 1908, which govern execution proceedings, the exercise of inherent powers, and the scope of appellate and revisional jurisdiction.

The factual backdrop involved a subordinate judge who dismissed an application filed by a decree-holder seeking an adjournment of an execution proceeding. By the same order, the judge also dismissed the execution case itself. The decree-holder’s counsel was not informed that the adjournment application had been dismissed, nor was the counsel asked whether any further submission was to be made on the execution matter. Consequently, the decree-holder filed an application for restoration of the execution case, seeking to set aside the dismissal. The subordinate judge, upon realizing that the failure to hear the counsel amounted to a procedural error that denied justice, exercised his inherent power under section 151 of the Civil Procedure Code to restore the execution case.

Following the restoration, the judgment-debtor filed both an appeal and a revision petition before the High Court challenging the subordinate judge’s order. The High Court examined the maintainability of the appeal and the validity of the subordinate judge’s restoration order. It concluded that the appeal was not maintainable. Nevertheless, exercising its revisional jurisdiction, the High Court set aside the subordinate judge’s order and remanded the matter to that court for fresh disposal, directing the lower court to consider whether the decree-holder could have taken any further steps after the original dismissal of the adjournment application.

In its reasoning, the Supreme Court held that the subordinate judge’s order dismissing the execution case without affording the decree-holder’s counsel an opportunity to be heard was fundamentally defective, and the restoration of the case was rightly effected by the judge’s own initiative under his inherent powers. The Court further clarified that the High Court lacked jurisdiction under its appellate powers to reverse the restoration order because such an order did not constitute a final determination of any issue relating to execution, discharge or satisfaction of a decree within the meaning of section 47 of the Criminal Procedure Code. Moreover, an order made under section 151 of the Criminal Procedure Code, standing alone, was not an appeal-able order. The observation on the legal position was authored by Akshia Pillai in the headnote of the reported decision.

The Court observed that the decisions in Govindarajulu Chetty (v. ~1924 Mad. 778), Govinda Padayachi (v. Velu Murugiah Chettiar ~1933 Mad. 399) and Noor Mohammad (v. Sulaiman Khan ~1943 Oudh 35) were distinguished from the present matter. The Court then explained that the order issued by the Subordinate Judge was within the Judge’s lawful authority. In granting that order the Judge had not exceeded his jurisdiction, had not acted with any material irregularity, and had not breached any procedural rule. Consequently, the High Court’s intervention was held to be beyond the scope of its revisional power under section 115 of the Civil Procedure Code. The Court declared that the High Court’s remand order and every subsequent step taken on its basis were illegal. Section 115 of the Civil Procedure Code, the Court explained, concerns jurisdiction alone, including the improper exercise, failure to exercise, or illegal assumption of jurisdiction. When a subordinate court possesses jurisdiction to make an order and does not violate any legal provision nor commit a procedural error that could affect the final outcome, the High Court is not empowered to interfere, even if it reaches a different conclusion on questions of fact or law. The Court cited several authorities to support this position, including Rajah Amir Hassan Khan v. Sheo Baksh Singh (1883-84) 11 I.A. 237, Bala Krishna Udayar v. Vasudeva Aiyar (1917) 44 I.A. 261, Venkatagiri Ayyangar v. Hindu Religious Endowments Board (1949) 76 I.A. 67, Joy Chand Lal Babu v. Kamalaksha Chowdhury (1949) 76 I.A. 131 and Narayan Sonaji v. Sheshrao Vithoba (1948) I.L.R. Nag. 16. The Court also noted dissenting judgments in Mohunt Bhagwan Ramanuj Das v. Khettar Moni Dassi (1905) C.W.N. 617 and Gulab Chand Bargur v. Kabiruddin Ahmed (1931) 58 Cal. 111.

The judgment was rendered in the Civil Appellate Jurisdiction under Civil Appeals Nos. 12 and 13 of 1951. Both appeals arose from the judgment and decree dated 17 February 1947 (with an alternative date of 21 February 1947) issued by the High Court of Judicature at Calcutta, composed of Judges Mukherjea and Biswas. These appeals challenged the decision on Original Order No. 62 of 1946, which also included a cross-objection, as well as Civil Revision Case No. 657 of 1946. Both matters derived from the judgment and order dated 13 March 1946 of the Court of the Subordinate Judge, Howrah, concerning Title Execution Case No. 68 of 1936. Counsel appearing for the appellant in Civil Appeal No. 12 and the respondent in Civil Appeal No. 13 included the Attorney-General for India and counsel assisted by S. N. Mukherjee. Representing the respondents in Civil Appeal No. 12 and the appellants in Civil Appeal No. 13 were the Solicitor-General for India together with counsel assisted by C. N. Laik and A. C. Mukherjea. The judgment was pronounced on 30 October 1952 by Justice Mahajan. The Court explained that these were two cross-appeals from the Calcutta High Court’s decision in its appellate jurisdiction, which had modified the order of the Subordinate Judge of Howrah in Title Execution Case No. 68 of 1936. The litigation leading to these appeals began approximately thirty years earlier. In 1923, Durga Prasad Chamria filed a suit against the respondents Radha Kissen Chamria, Motilal Chamria and their mother Anardevi Sethan (now deceased) seeking specific performance of an agreement for the sale of immovable property in Howrah and claiming a sum of Rs. 11,03,063-8-3 along with other reliefs.

In this case the plaintiff instituted a suit against the respondents, who were his mother Anardevi Sethan (now deceased), Radha Kissen Chamria and Motilal Chamria, seeking specific performance of an agreement for the sale of an immovable property situated in Howrah and claiming a monetary relief of Rs 11,03,063-8-3 together with other reliefs. The suit was eventually resolved by a decree of compromise dated 19 April 1926. By virtue of that compromise decree the plaintiff became entitled to receive a sum of Rs 8,61,000 from the respondents, the sum being liable to interest at the rate of 61 per cent per annum, with yearly rests calculated from the date fixed for payment until the time of actual realization. The decree provided that part of the decretal sum would be payable on the execution of the solemnized summons (solenama) and that the balance should be discharged by instalments within eighteen months of that date.

According to the records, within fifteen months after the decree a total amount of Rs 10,00,987-15-6 was said to have been paid towards the satisfaction of the decree. However, neither the judgment-debtors nor the decree-holder took any steps within the period prescribed by law to have most of those payments certified. After a long lapse the judgment-debtors filed an application seeking certification of the payments, but the decree-holder vehemently opposed the application and refused to admit that the payments had been made. Consequently the court recorded only the last three instalments, which had been paid within ninety days of the application, as having been made. The judgment-debtors were therefore required to commence a separate regular suit against the decree-holder in order to recover the amounts that had been paid but not admitted in the execution proceedings.

In 1929 the court passed a decree in favour of the judgment-debtors for the amount that they had actually paid but which had not been certified in the execution. During the intervening period the decree-holder managed to realise further sums by initiating execution proceedings on two or three occasions. The amount for which a decree had been passed against the decree-holder was subsequently adjusted against the amount due under the consent decree.

On 17 March 1933 the original decree was assigned by Durga Prasad Chamria to the appellant, Keshardeo Chamria. The execution proceedings that form the subject of the present appeals were commenced by the assignee on 10 October 1936 for the purpose of realizing Rs 4,20,693-8-9 together with interest and costs. These execution proceedings experienced a chequered course. At the outset the judgment-debtors raised an objection that the assignee, being only a benamidar (nominee) of Durga Prasad Chamria, lacked locus standi to institute the execution. After a litigated struggle lasting about five years, the court held in favour of the assignee, concluding that the assignment was bona-fide and that Keshardeo Chamria was not merely a benamidar of the decree-holder.

On 17 July 1942 Keshardeo Chamria filed an application seeking attachment of several newly acquired properties of the judgment-debtors and also seeking their arrest. The respondents, represented by Radha Kissen Chamria, raised another set of objections to that application. They disputed the correctness of the decretal amount and asserted that a payment of Rs 1,60,000 should be recorded and certified as having been made on 28 May 1934, rather than on the date on which the sum was actually paid to the decree-holder. The Subordinate Judge considered those objections on 11 September 1942 and held that the judgment-debtors were liable to pay interest on the disputed sum.

It was held that the sum of Rs 1,60,000 was due only up to 12 October 1936 and not up to 4 July 1941, which was the amount claimed by the assignee. The High Court, by its judgment dated 22 June 1943, upheld the decree-holder’s contention and ruled that the judgment-debtors were liable to pay interest on that sum up to 4 July 1941. After that decision, the judgment-debtors applied for leave to appeal to the Privy Council, and such leave was granted. On 13 February 1945 an application was filed seeking to withdraw the appeals, and the court allowed the withdrawal by an order dated 20 February 1945. Consequently, the opposition raised by the judgment-debtors to the decree-holder’s application of 17 July 1942 came to an end on 20 February 1945. The records of the execution case were subsequently sent back by the High Court and arrived at the Howrah Court on 28 February 1945. The decree-holder’s counsel was apprised of the arrival of the records by an order dated 2 March 1945, and the hearing of the matter was fixed for 5 March 1945.

When the court sat on 5 March 1945 it made the following order: the decree-holder prayed for time to take the necessary steps, the case was adjourned to 10 March 1945 for further orders, and the decree-holder was directed to take those steps by that date. The decree-holder then applied for a further adjournment, and on 10 March 1945 the court passed an order stating that the decree-holder again prayed for time to give instructions to his pleader, but this petition for time was rejected and the execution case was dismissed as part satisfaction. Upon learning of this order, the decree-holder, on 19 March 1945, filed an application under section 151 of the Civil Procedure Code seeking restoration of the execution and setting aside the dismissal. The application notice was served on the judgment-debtors, who raised several objections. By an order dated 25 April 1945 the Subordinate Judge granted the decree-holder’s prayer and ordered the restoration of the execution. The operative part of that order recorded that on 10 March 1945 the decree-holder had again prayed for time to instruct his pleader, the petition was rejected, and the same order dismissed the execution case as part satisfaction. Counsel for the petitioner now requested that the order dismissing the execution case be vacated, invoking section 151 of the Civil Procedure Code to cancel that order and to restore the execution proceedings. The court considered whether it was justified in dismissing the execution case in the same order that rejected the decree-holder’s petition for adjournment without giving his pleader an opportunity to make any submission.

In considering the matter, the judge observed that the decree-holder’s pleader had not been given an opportunity to make any submission after the petition for an adjournment was rejected. The order made clear that the rejection of the decree-holder’s petition for time filed on 10 March 1945 had not been communicated to his pleader. The judge expressed the view that this failure amounted to a denial of justice to the decree-holder in the execution proceeding, describing it as a serious omission on the part of the court not to inform the pleader of the result of the adjournment application while simultaneously dismissing the execution-case part satisfaction. The judge held that section 151 of the Civil Procedure Code was the only provision that empowered the court to correct the omission of failing to convey the outcome of the adjournment petition to the decree-holder’s counsel, and consequently decided to vacate the order that had dismissed the execution-case part satisfaction. The judge emphasized that the very purpose of the courts was to secure justice, and that rectifying the omission was necessary to fulfill that purpose.

The Advocate-General for the judgment-debtor, Radha Kissen, argued that the court lacked jurisdiction to set aside the order of 10 March 1945 because section 48 of the Civil Procedure Code, which deals with limitation periods, barred the relief sought by the decree-holder. The judge did not dispute the theoretical soundness of the Advocate-General’s argument, but noted that the factual circumstances showed a clear denial of justice caused by the earlier omission. Accordingly, the judge concluded that the operation of section 48 could not be invoked to support the judgment-debtor’s position in this case.

The judge further remarked that, had the dismissal for default been finally closed by his order, the parties would have avoided considerable expense and trouble. Instead, a serious controversy arose concerning the correctness of the order, and after seven years the dispute reached this Court. Both an appeal and a revision were filed before the High Court challenging the Subordinate Judge’s order. On 24 August 1945 the High Court held that no appeal lay against the order because the question did not fall within the scope of section 47 of the Civil Procedure Code. However, the High Court entertained the revision application, allowed it, and remanded the matter to the Subordinate Judge for reconsideration and disposal in accordance with the observations made in its judgment.

The Court observed that the Subordinate Judge had erred in restoring the execution because he had failed to consider whether the decree-holder’s pleader could realistically take any step to assist the execution after being informed of the order dismissing the adjournment application. The High Court explained that the Subordinate Judge’s justification for restoring the execution was that the order rejecting the adjournment petition should have been communicated to the decree-holder’s pleader, but that communication had not taken place. Assuming that this omission was on the part of the court, the High Court questioned whether the decree-holder could have taken any further steps concerning the execution of the decree so as to avoid a dismissal of the execution case for default. It noted that the Subordinate Judge had taken no evidence on this point and had not examined the pleader who was handling the execution on behalf of the decree-holder. The High Court further observed that, if on that day the decree-holder was unable to state the amount due under the decree and believed that a detailed accounting was required to arrive at the correct figure, then it would not have been possible for him to request the court to issue any process such as attachment of property on that date. Consequently, the High Court concluded that the learned judge should have examined the matter properly and should have obtained sufficient material to determine whether the decree-holder could indeed have taken any steps after the application for adjournment was refused. In sharp contrast to the view expressed in the order of remand, the High Court’s final judgment under appeal highlighted an important circumstance that, in its opinion, favored the decree-holder. It pointed out that after the petition for time was rejected, the court did not call the execution case nor did it otherwise communicate its decision to proceed with the execution. While this might be regarded as a mere procedural error that the decree-holder should not be allowed to exploit, the error was admitted by the learned judge himself, and the Court held that his opinion could not be lightly dismissed. The Court emphasized that the learned judge, who presided over the proceedings on 10 March 1945, was in the best position to assess whether the rejection of the petition for time and the consequent dismissal of the execution case amounted to a denial of justice, and it was not for the higher court to declare the judge’s view incorrect. The Court further noted that even if the execution case had been called, the decree-holder’s pleader might still have been absent, but given the totality of facts and circumstances, the decree-holder could be given the benefit of the doubt.

In considering the matter, the Court observed that, although the decree-holder’s counsel might have been absent, the totality of the facts and circumstances justified granting the decree-holder the benefit of the doubt. The Court therefore assumed that the counsel would have appeared before the learned judge and would have attempted to avoid a summary dismissal of the execution proceeding, even if the counsel or his client were not fully prepared with all required documents for the continuation of the execution. The Court further noted that, as previously pointed out and as also found by the lower court, the decree-holder or his counsel could have presented to the court an account of the decretal dues that accrued after the refusal of the adjournment. Even if such an account could not have been filed, the Court believed that, had the counsel been present, he could have taken steps to prevent dismissal by, for example, drawing the court’s attention to earlier orders or otherwise highlighting relevant procedural points.

The Court explained that it was not difficult to imagine the actions the counsel would have taken when confronted with this dilemma. The counsel would have immediately requested that the execution be issued for an amount that was roughly known to him, and that the court issue a process for the arrest of the judgment-debtors. By making such a statement, the counsel would have averted the dismissal without causing any prejudice to his client, who could later file a separate application specifying the exact amount due and seeking any additional relief. After the matter was remanded, the learned Subordinate Judge, on 13 March 1946, restored the execution case insofar as a sum of Rs 92,000 was concerned, while maintaining the dismissal on the other points. The judge held that the decree-holder had been grossly negligent on 5 March 1945 and 10 March 1945, and that, because of this negligence, the execution case was dismissed in default. The judge further held that even if the decree-holder’s counsel had been informed of the order rejecting the application for adjournment, he could not have taken any step to prevent the dismissal. Since the execution was now barred by limitation, the judgment-debtors should not be deprived of the valuable rights they had acquired, yet 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 expressed dissatisfaction with the Subordinate Judge’s order. The decree-holder filed an appeal to the High Court and also lodged an application under section 115 of the Civil Procedure Code. The judgment-debtors filed cross-objections in the appeal and submitted an alternative application in revision. The High Court disposed of the appeal, the cross-objections and the two revision applications together in a judgment dated 17 February 1947. The High Court set aside the order dismissing the execution in default, restored the case, and held that the decree-holder was not entitled to interest on the decretal amount from 10 March 1945 up to the date of final determination of the amount of such interest.

By the order of the executing court, the judgment-debtors were directed to receive a consolidated sum of Rs 20,000 as compensatory costs. The court stipulated that this amount had to be paid to the judgment-debtors within two weeks after the records arrived in the executing court, or alternatively, the sum could be certified in the execution. The order further provided that if the judgment-debtors failed to comply, the appeal would be dismissed with costs and the cross-objections would be decreed with costs. The judgment-debtors subsequently filed an application for leave to appeal to His Majesty in Council against this order, and leave was granted on 30 May 1947. The decree-holder also sought leave to appeal, and his application was granted on 27 June 1946. Both appeals were then consolidated by an order dated 4 December 1947, and the consolidated appeals were transferred to this Court.

On behalf of the decree-holder, counsel argued that the High Court had erred in allowing the judgment-debtors to receive Rs 20,000 as compensation for costs. It was contended that, in view of the terms of the compromise decree, the High Court possessed no jurisdiction to deprive the decree-holder of the interest that the decree had granted him. Further, counsel submitted that the High Court lacked any power or jurisdiction under section 115 of the Civil Procedure Code to set aside the order dated 25 April 1945, which had been passed by Mr Chakravarti, Subordinate Judge, under section 151 of the same Code. The decree-holder’s counsel maintained that the interlocutory remand order of the High Court was issued without jurisdiction and, consequently, all subsequent proceedings that followed that order were null and void.

Counsel for the judgment-debtors supported the High Court’s judgment to the extent that it favored them, but also argued that the High Court should have refused to restore the execution altogether. It was submitted that the High Court’s assumption that the decree-holder’s pleader could have taken steps to prevent the dismissal of the case or could have presented a statement to the court was wholly unwarranted and unjustifiable. Counsel further urged that the decree-holder was guilty of gross negligence and was himself responsible for the dismissal of the case. It was also argued that it was unnecessary to formally call the case after the rejection of the petition for adjournment and that a valuable right had accrued to the judgment-debtors by the lapse of time; consequently, they should not have been deprived of that right when the court exercised its inherent powers.

The Court considered that it was unnecessary to examine every point raised in the appeals because, in its view, the decree-holder’s contention that the order of remand was without jurisdiction and that all proceedings taken after the executing court’s order reviving the execution were void, was a valid ground. The sole reason the Subordinate Judge had ordered the restoration of the execution was that he himself had made an error by dismissing the execution at the same time he dismissed the adjournment application, without informing the decree-holder’s counsel that the request for adjournment had been

The Subordinate Judge refused the request for adjournment without first asking the party what relief was sought in the circumstances. In correcting this mistake he acted under his inherent powers and therefore need not examine the correctness of the various allegations and counter-allegations presented by the parties. He was the most qualified observer of the procedure normally followed in his court for such matters, and there is no basis for doubting his assertion that he had not afforded the decree-holder’s counsel an opportunity to take any steps in execution after the adjournment application was dismissed. It cannot be seriously contended that such an opportunity was ever provided, because the order dismissing the execution was issued simultaneously with the order dismissing the adjournment application. Justice required that the decree-holder’s counsel be informed that the request for adjournment had been refused and that he be given a chance to indicate what he desired to be done thereafter. It was wholly unnecessary to speculate on what the counsel might have done when placed in that position. The incontrovertible fact is that the counsel was not given that opportunity, rendering the order dismissing the execution defective; the defect was correctly rectified by the court of its own motion invoking its inherent powers. The remaining question is whether the High Court, exercising either appellate or revisional jurisdiction, could set aside such an order.

The Court observes that the High Court possessed no jurisdiction, in the exercise of its appellate jurisdiction, to reverse the decision. The remand order itself noted that it was difficult to regard the order as a final determination of any issue relating to execution, discharge, or satisfaction of the decree, and therefore it did not fall within the scope of Section 47 of the Civil Procedure Code. This observation is fully endorsed. The proceedings that began with the decree-holder’s application for restoration of execution and concluded with the order reviving the execution cannot be characterised as determinations of any question concerning execution, discharge, or satisfaction of the decree; they are collateral to the execution and independent of it. No argument was advanced, nor could it be seriously made, that an order passed under Section 151 is appealable. According to the Code of Civil Procedure, only specific orders enumerated in Section 104 and Order XLIII, Rule 1 are appealable, and Section 105 expressly provides that no appeal lies from any other orders. Consequently, an order made under Section 151 does not belong to the class of appealable orders.

Mr. Daphtary submitted that an order made under section 151 of the Code of Civil Procedure could, in certain circumstances, be liable to appeal. To back this submission he cited two single-judge decisions of the Madras High Court and one bench decision of the Oudh High Court, namely Akshia Pillai v. Govindarajulu Chetty¹, Govinda Padayachi v. Velu Murugiah Chettiar², and Noor Mohammad v. Sulaiman Khan¹. In each of the cited authorities the trial court had set aside an execution sale by exercising its inherent powers, and the appellate courts thereafter held that the orders which reversed those sales were appealable. The ratio articulated in the first Madras case is not clearly expressed and its reasoning appears questionable. By contrast, the judgments in the other two cases expressly held the orders to be appealable on the basis that they fell within the ambit of section 47 of the Code of Civil Procedure read together with section 151. The present Court finds it unnecessary to pass a judgment on the correctness of those earlier decisions because they are not applicable to the present dispute; there is no legal analogy between an order that annuls an execution sale and an order that sets aside the dismissal of an application. Accordingly, the High Court correctly upheld the preliminary objection that no appeal lay from the order of the Subordinate Judge dated 25 April 1945.

The subsequent question for determination is whether a revision under section 115 of the Code of Civil Procedure could be entertained against the same 25 April 1945 order when an appeal was unavailable. The Court observes that, in effect, the High Court entertained an appeal in the guise of a revision. Section 115 provides that the High Court may call for the record of any case decided by a subordinate court and, if it is satisfied that the subordinate court (a) exercised jurisdiction which it did not possess, (b) failed to exercise jurisdiction that was vested in it, or (c) acted illegally or with material irregularity, the High Court may pass such order as it deems appropriate. A large number of decisions compiled in the fourth edition of Chitaley & Rao’s Code of Civil Procedure (Vol. I) illustrate that High Courts have not always appreciated the precise limits of the jurisdiction conferred by this section. For instance, in Mohunt Bhagwan Ramanuj Das v. Khetter Moni Dassi¹ the Calcutta High Court expressed the view that sub-clause (c) of section 115 was intended to enable the High Court to intervene and correct gross and palpable errors of subordinate courts so as to prevent grave injustice in cases where appeal was not permissible. That opinion was later dissented by the same court in Enat Mondul v. Baloram Dey², although it was subsequently cited with approval by Lort-Williams J. in Gulabohand Bangur v. Kabiruddin Ahmed¹, thereby indicating the continuing debate over the proper scope of revisional jurisdiction.

In the present circumstances it is appropriate to recall once again the decisions of the Privy Council that addressed this subject and the limits that those decisions set for the exercise of jurisdiction conferred on the High Courts by the relevant statutory provision. As early as 1894, in the case of Hajah Amir Hasan Khan v. Sheo Baksh Singh, the Privy Council examined section 622 of the former Code of Civil Procedure, a provision that was later superseded by section 115 of the Code of 1908. The Council observed that the essential question was whether the judges of the lower courts, in exercising their jurisdiction, had acted illegally or with material irregularity. The Council concluded that the lower court judges possessed full jurisdiction to decide the matter and, even if their decision was erroneous, they had not exercised their jurisdiction in an illegal manner nor committed a material irregularity.

Subsequently, in 1917, the Privy Council considered the case of Balakrishna Udayar v. Vasudeva Aiyar and remarked that section 115 pertains solely to jurisdiction, to the irregular exercise or non-exercise of jurisdiction, and to the illegal assumption of jurisdiction. The Council emphasized that the provision does not extend to conclusions of law or fact where the question of jurisdiction does not arise.

Later, in 1949, the Privy Council examined the scope of section 115 in Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras. The Council stated that it could find no justification for the view that the statute was intended to empower the High Court to intervene and correct gross or palpable errors of subordinate courts in order to avert grave injustice in cases where no appeal lay. The Council further observed that it would be difficult to devise any standard by which the degree of error of subordinate courts could be measured. It explained that section 115 applies only to cases where no statutory right of appeal exists, and where the legislature has provided no appeal, the clear intention is that the order of the trial court, whether right or wrong, shall be final. The provision empowers the High Court to be satisfied of three matters: (a) that the order of the subordinate court falls 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 any legal provision—or with material irregularity, meaning an error of procedure that could have affected the final decision. If the High Court is satisfied of these three criteria, it possesses no power to interfere merely because its conclusions differ, however profoundly, from those of the subordinate court on questions of fact or law.

Later in the same year, the Privy Council revisited the matter in Joy Chand Lal Babu v. Kamalaksha Choudhury. In that decision, the Lords reiterated the points previously made, emphasizing again the limited scope of section 115 and the conditions under which the High Court may exercise its revisional jurisdiction.

There have been a very large number of decisions of Indian High Courts interpreting section 115, many of which were cited before the Court. Some of those decisions observe that an error in a decision of a subordinate court does not automatically mean that the subordinate court acted illegally or with material irregularity within the meaning of sub-section (c). Nevertheless, if the erroneous decision causes the subordinate court to exercise a jurisdiction that the law does not vest in it, or to fail to exercise a jurisdiction that it does possess, a case for revision arises under sub-section (a) or sub-section (b). In such circumstances the requirement of sub-section (c) may be ignored, because the essential defect relates to the scope of jurisdiction rather than to a procedural flaw.

The Court also referred to the observations of Bose J. in the order of reference in Narayan Sonaji v. Sheshrao Vithoba, where it was explained that the words “illegally” and “material irregularity” do not cover errors of fact or errors of law. Those words refer to the manner in which a decision is reached, not to the substantive conclusion. The errors contemplated under the provision must concern material defects in procedure, not mistakes of law or fact after the required legal formalities have been complied with. Applying this principle, the Court held that by reversing the order of the executing court dated 25 April 1945 and reviving the execution, the High Court exercised a jurisdiction that section 116 of the Code does not confer upon it. It was clear that the Subordinate Judge’s order of 25 April 1945 was within his jurisdiction; he neither exceeded nor assumed any jurisdiction beyond what the law gave him, and he did not act with any material irregularity or breach of procedure. The only mistake he made was dismissing the main execution while dealing with an application for adjournment. The failure to consider what the decree-holder’s pleader might have submitted, if given a chance, did not amount to a material irregularity in the exercise of jurisdiction. That speculation was irrelevant to the case before the Judge, who possessed the authority to correct his own error without having to enter into a discussion of the decree-holder’s grounds or the objections raised by the judgment-debtors. Consequently, the Court was satisfied that the High Court acted in excess of its jurisdiction when it entertained a revision application against the Subordinate Judge’s order, set that order aside, and remanded the matter for further enquiry.

In this case the Court allowed Appeal No 12 of 1951 because the interlocutory remand order issued by the High Court was without jurisdiction. Since that remand order lacked jurisdiction, every proceeding that resulted from it was declared null and void. Accordingly, the order of the Subordinate Judge that restored the execution application to the extent of Rs 92,000 and the subsequent order of the High Court on appeal that restored the terms of the execution case were set aside. The Court then restored the original order of the executing court dated 25 April 1945. The Court issued this order accordingly and dismissed Appeal No 13 of 1951.

In view of the peculiar circumstances, the Court directed that each party bear its own costs at every stage of the litigation. This direction covered the costs each party had incurred in the High Court before the remand order, the costs incurred in the subordinate court after the remand order, the costs incurred subsequently in the High Court, and the costs incurred in the present Court in these appeals.

Thus Appeal No 12 was allowed and Appeal No 13 was dismissed. Counsel for the appellant in Civil Appeal No 12 and counsel for the respondent in Civil Appeal No 12 was P K Chatterjee. Counsel for the respondents in Civil Appeal No 12 and counsel for the appellants in Civil Appeal No 13 was Sukumar Ghose.