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Judgment
M.L. Verma, J.—Messrs Satya Pal Vishwa Mitter held a money decree against Messrs Gurdit Singh and Sons. In execution of that decree, three shops belonging to Messrs Gurdit Singh and sons were put to auction. Dinanagar Marketing Cooperative Society, Dinanagar too held a money decree against Messrs Gurdit Singh and sons and they took out execution of the same, and applied for rateable distribution of the amounts to be realised by the sale of the aforesaid three shops Messrs Sardari Lal and Brothers also held money decree against Messrs Gurdit Singh and Sons and they took out execution of the same and applied for rateable distribution. The executing Court allowed the sale proceeds of two shops to be rateably distributed among the aforesaid three decree holders. It, however, held that Messrs Sardari Lal and Brothers were not entitled to share the sale proceeds of the third shop because they had applied for execution of the decree after receipt of the sale proceeds of that shop. Aggrieved by the said decree, Messrs Sardari Lal and Brothers preferred appeal to this Court. None appeared for the rival decree holders in the appeal and the same was allowed on July 31, 1975.
Messrs Satya Pal Vishwa Mitter moved application under Order XLVII Rule 1, CPC (hereinafter referred to as the Code) for review of the order passed by this Court on July 31, 1975, whereby the appeal had been allowed, on the ground that the appeal was incompetent. The said application was opposed by Messrs Sardari Lal and Brothers.
The order passed by the executing Court on July 27, 1974 (hereinafter called the impugned order) against which the appeal had been preferred by Messrs Sardari Lal and Brothers points out, and it is not disputed, that the matter decided by the impugned order was between the rival decree holder. In other words, the impugned order did not allow Messrs Sardari Lal and Brothers to share the sale proceeds of the third shop rateably with the other two decree holders. The impugned order passed by the executing Court did not decide any dispute between Messrs Sardari Lal and Brothers or any other decree bolder and the judgment debtor (Messrs Gurdit Singh and Sons). Therefore, the impugned order related to a dispute between the rival decree holders and does not come within the purview of Section 47 of the Code, Therefore, it had not the status of a decree. Hence, it was not appealable. No appeal is otherwise provided against the impugned order by the Code. In these premises, I unhesitatingly find that the appeal was incompetent. In view of that finding, it is evident that this Court had no jurisdiction to interfere with the impugned order passed by the executing Court, on the appellate side. So, it is apparent that the order passed by this Court on July 3, 1975 whereby the appeal had been allowed, suffers from the infirmity of lack of inherent jurisdiction. What is an error apparent on the face of record as contemplated by Rule 1 of Order XLVII of the Code, cannot be defined precisely or exhaustively. The said expression ''an error apparent on the face of record'' would be an error so manifest, so clear that no Court would permit such an error to remain on the record. When, as indicated above, the order dated July 31, 1975 had been passed under a misapprehension that the appeal was competent and it has now come to light that the appeal was incompetent and this Court would not interfere with the impugned order challenged in the appeal, in exercise of the appellate jurisdiction. I feel no reluctance in finding that the aforesaid order dated July 31, 1975 suffers from error apparent on the face of record and has to be reviewed.
For the foregoing reasons, I allow this application and recall the order passed on July 31, 1975.
Faced with this difficulty that the impugned order was not appealable and the appeal preferred against it was incompetent. Mr. Puri, Learned Counsel appearing for Messrs Sardari Lal and Brother, prayed orally that the said appeal be treated and decided as revision, i he said prayer was met by Mr. Swaraj Learned Counsel for Messrs Satya Pal Vishwa Mitter, with the contention that this Court will not interfere with the impugned order because Section 73(2) of the Code provided alternative remedy by way of suit to Messrs Sardari Lal and Brothers. He cited Sardarni Gurdial Kaur v. Satinder Singh (1964) 66 PLR 1032, in support of his aforesaid contention. The judgment rendered in Sardarni Gurdial Kaur''s case (supra) is to the effect that in view of the provisions contained in Sub-section (2) of Section 73 of the Code which provide a remedy by way of suit, a revision against an order u/s 73 of the Code allowing or declining rateable distribution of the assets of the judgment debtor between the rival decree holders passed by the executing Court, is not competent. AIR 1939 52 (Lahore) , in support of his contention that the High Court can interfere with a view to avoid multiplicity of proceedings although the alternative remedy by way of suit is available to the aggrieved party. In Mt. Bhagwanti''s case (supra) the order challenged in revision was not the one which had been passed u/s 73 of the Code, but it was the order which had been passed under Order XLVII Rule 1 of the Code. Therefore, the judgment rendered in Mt Bhagwanti''s case (supra) can be of no help to Messrs Sardari Lal and Brothers. Mr Puri also contended that there were authorities of the other High Courts laying down the same principle as enunciated in Mt. Bhagwanti''s case (supra). He, however, conceded that there is no authority of the Supreme Court or of this Court which is contrary to the judgment rendered in Sardarni Gurdial Kaur''s case (supra). I am bound by the aforesaid judgment of our High Court. Therefore, following the judgment rendered in Sardarni Gurdial Kaur''s case (supra) by our High Court, I feel that the revision is also incompetent. As such, the prayer of Mr. Puri to treat the appeal as revision is declined.
Consequently I dismiss the appeal being incompetent. In the circumstances of the case, I however make no order as to costs.