Kakraul Co-operative Society vs Durganand Jha and Others

Dhavle, J.—In execution of a decree on an award under the Co-operative Societies Act, the petitioner obtained delivery of possession over 16 bighas and odd as the land of the judgment-debtor Jaikishore Jha.

The opposite party, a brother and a nephew by another brother of the judgment-debtor, applied under Order 21, Rule 100 on the ground that the property was ancestral, that they had a two-thirds interest in it, that on the death of Thithar Jha, father of Jaikishore Jha and others, there had been a disruption of the family with a division of the lands by mets and bounds, and that the debt on which the petitioner had obtained his decree, had not been incurred by Jaikishore for purposes binding on the family. They claimed certain specific plots as their separate property since the division. The execution Court held against them that the family had not been divided, but found in their favour that there was no necessity for the loan. The story of partition and division of lands by metes and bounds having been found to be a "myth," the application was dismissed, but the learned Subordinate Judge observed that:

the applicants may renew their claim by a separate application to be put into joint possession over a two-thirds share in the land sold and the same will be allowed.

This was on 25th August 1931. The opposite party accordingly applied on 3rd September 1931 under Order 47, Rule 1 stating that owing to an oversight an alternative prayer for joint possession could not be made originally in the application, "without which, proper relief could not be granted to these petitioners," and praying that "in the interest of justice" the order of dismissal be reviewed and vacated, and "joint possession over a two-thirds share" in the property be granted to them.

This application was resisted by the present petitioner on the grounds that it did not come within Order 47, Rule 1 and that as the applicants had the opportunity of raising the question of joint possession at the time of the previous application, they could not be allowed to evade the provisions of the law by such an application. The learned Subordinate Judge held that the matter in issue had been already decided in the previous case and that the order in that case was final between the parties, and that the application "has to be allowed u/s 151, Civil P.C., if it does not come under Order 47, Rule 1." He accordingly allowed the application and gave the opposite party joint possession over the lands to the extent of a two-thirds interest. Hence this application in revision.

The learned advocate for the petitioner has contended, though somewhat half heartedly that Rule 100, read with Rule 101, Order 21 has no application to cases of joint possession. That view was held in an old Bombay case, Coverji v. Dewsey (1893) 17 Bom 718, which was definitely dissented from in Radha Gobind Misra v. Raghunath Misra (1913) 20 IC 253, a case which has been followed in several cases including a decision of this Court, Ram Kishun Singh and Others Vs. Damodar Proshad and Others, . That the application of the opposite party does not come within Order 47, Rule 1 is clear; this provision of the law applies to three kinds of cases: (1893) 17 Bom 718 cases of discovery of new and important matter, or evidence which, after the exercise of due diligence, was not within the applicant''s knowledge or could not be produced by him on the previous occasion; (1913) 20 IC 253 cases of some mistake or error apparent on the face of the record; and Ram Kishun Singh and Others Vs. Damodar Proshad and Others, cases where "for any other sufficient reason" a review is desired.

The present is clearly not a case of the first or the second kind; and as regards "any other sufficient reason" there is the decision of the Privy Council in Chhajju Ram v. Neki AIR 1922 PC 112, in which it was held that the words meant a reason sufficient on grounds at least analogous to those specified immediately previously. The question then is whether Section 151 applies, a section which merely leaves untouched the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. The exercise of this inherent jurisdiction, it is well settled, is subject to the rule that it must not be invoked where the Code contains specific provisions which would meet the necessities of the case.

The section does not become applicable in every case in which there is no other remedy: see Anant Potdar Vs. Mangal Potdar, and it is not usually applied at the instance of a party who has a specific remedy under the Code but has neglected to avail himself of it; nor can the law of limitation be ignored by taking recourse to the section.

The prayer made by the opposite party in the second application was obviously barred by time, and they had neglected to make proper use ot the specific remedy given them by Order 21, Rule 100; they do not also seem entitled to any sympathy for coming to Court on the first occasion with a false story of division by metes and bounds, which put it out of the question to claim joint possession as an alternative. It is impossible to see how in these circumstances it can be considered necessary for the ends of justice that they should be allowed to invoke the inherent jurisdiction of the Court u/s 151. The learned Subordinate Judge considered that the matter was concluded--"was final between the parties"--by reason of the previous order in which he had definitely said that if the applicants renewed their claim to joint possession of two-thirds by a separate application, it would be allowed.

As the first application was however dismissed, the auction-purchaser, now the petitioner, could hardly have successfully moved against that order. The applicants before the learned Subordinate Judge had also another remedy available to them, viz., a suit under Order 21, Rule 103. There is no reference in the order under review to this or to the patent fact that the second application was barred by time.

It has been urged on behalf of the opposite party that the High Court cannot interfere in revision u/s 115, Civil P.C. merely because the lower Court has allowed an application which was barred by limitation. That view has undoubtedly been taken in a number of cases of unquestionable authority, but there is a current of decisions in this and other Courts where a distinction has been made between cases in which the lower Court decided the question of limitation and cases in which the lower Court did not apply its mind to that question at all.

As instances of the latter, it is sufficient to refer to Tara Sankar Ghosh v. Basiruddin (1915) 29 IC 476, In Re: A First Grade Pleader, , (a case where the lower Court had declined to exercise jurisdiction by reason of a wrong decision as regards limitation) and Mode Narain Singh v. Bikram Singh AIR 1924 Pat 36.

In Mt. Dukhno v. Manshi Sahu AIR 1919 Pat 543, it was held that though Section 148, Civil P.C., expressly confers a discretion on Courts from time to time to enlarge any period of time fixed or grunted by the Court for the doing of any act prescribed or allowed by the Court, arbitrary extensions of time by Munsifs, who did not apply their minds to the question of limitation at all, were beyond their jurisdiction, and that not to apply Section 115 to such cases would render the law of limitation "nugatory and senseless," and would encourage the evil of the law''s delays which has been more than once animadverted upon by the Privy Council.

It seems to me that in the present case the lower Court had no inherent jurisdiction u/s 115 to pass the order that it has done in defiance of the law of limitation and in spite of the fact that the opposite party had put themselves in the wrong in more than one way.

The application is accordingly allowed with costs and the order of the lower Court set aside.