Municipal Corporation of Delhi vs Sunni Majlis Aukaf and Others

(1) This revision has been presented in this Court u/s 115, Civil P. C., and Article 227 of the Constitution of India and is directed against the order of a learned Sub-ordinate Judge, First Class, dated 22-5-1961, declining to review u/s 151, Code of Civil Procedure, its earlier order, dated 7-2-1959 passed in Execution Case No. 357 of 1957 (Municipal Committee, Delhi v. Sunni Majlis Aukaf, etc.)

(2) The Municipal Corporation, Delhi, it appears, had obtained a decree against Sunni Majlis Aukaf and Bhagwan Dass for possession of the suit property subject to the condition that the execution of the decree would be taken out after the expiry of two years from its date. This decree was a compromise decree based on a joint statement of the parties made at the trial on 18-5-1963. The mesne profits were to be fixed after the inspection of the property by the Court and it was actually, fixed at the rate of Rs. 20 per month pending the recovery of possession. Possession, I am informed, was actually delivered on 30-4-1957. Execution of the decree in regard to the mesne profits was sought, but the same was dismissed by Shri C. D. Vashistha, Subordinate Judge, Second Class, Delhi, on 7-2-1959. It was observed by the executing Court that the execution petition could not be made unless a final decree was passed as provided by Order 20, Rule 12 (2), Code of Civil Procedure. In the view of the executing Court, in the case in hand, the Court trying the suit had only laid down the mode of calculation of mesne profits and no definite sum was ascertained. Unless, Therefore, a final decree was passed, the decree sought to be executed was inexecutable according to law at that stage because the executing court could not calculate the amount. A final decree, according to the executing Court, had to be passed by the Court disposing of the suit. The concluding portion of the order was in the following words:-

"In view of the reasons above mentioned, I hold that the mesne profits as claimed by the decree-holder can not be recovered in this execution application. But, there is no bar with respect to the recovery of costs. Hence, the costs be recovered from the judgment-debtor according to law." (3) For reasons best known to the Municipal Committee, Delhi, this order was not appealed from and on 28-3-1960, an application, out of which this revision arises, was presented u/s 151, Civil P. C., for reviewing the order dated 7-2-1959. By means of the impugned order dated 22-5-1961, the Court below has rejected that application with the observation that the impugned order was appealable and also subject to review under O. 47, Civil P.C., both of which remedies were subject to a period of limitation prescribed by statute. In fact of these remedies, the Court felt helpless and declined to exercise its inherent power u/s 151 of the Code.

(4) On revision before me, the learned counsel for the petitioner (now the Municipal Corporation of Delhi), Shri S. S. Chadha has very strongly urged that no litigant should suffer by a mistake committed by the Court and , Therefore, in the present case, when the Court below has, in the impugned order, held that there was already; in existence a decree, it should have reviewed and set aside the earlier order, dated 7-2-1959, and executed the decree made in favor of the petitioner-decree-holder. In support of this submission, he has strongly relied on Rajendra Singh Vs. Ramganit Singh, , S. Dhillu Singh Vs. S. Sohan Singh and Another, and Hasan Vali Bagas Vs. Isap Bapuji Patel, .

(5) In my opinion, none of these decisions lays down any rule of law which can appropriately and justly be applied to the case in hand. It is conceded that the impugned order was appealable. It is also incontrovertible that such appeal is subject to a period of limitation, after the expiry of which the order becomes final. It is not denied that remedy by way of review is provided by the CPC in the form of Section 114 and O. 47, and it is again not controverter that there is a period of limitation fixed for such review application. In such a situation, to resort to the inherent powers of the Court, as have been preserved to it by, Section 151, Code of Civil Procedure, is a procedure which has to be justified by very strong exceptional circumstances. Nothing in this connection has been stated at the Bar and all that has been submitted is that if the inherent powers of the Court are not allowed to be invoked in this case, great injustice will be done to the decree-holder. As to why the decree-holder has not taken suitable steps for seeking the requisite relief within the prescribed period of limitation by having resort to remedies by way of appeal and review, has been left only to be guessed and not only has no material been brought on the record, but nothing has been stated even in the arguments at the Bar to induce this Court interfere u/s 115, Civil P. C., or under Article 227 of the Constitution. No jurisdiction infirmity has been pointed out and all that has been contended is that the Court below has erroneously failed to exercise its jurisdiction by merely observing that the inherent powers can not be invoked in face of the provisions by way of appeal and review. The view of the Court below on the facts of this case can not in my opinion, be said to be in any way infirm. Section 151 of the Code merely reserves to the Court inherent power to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Court and this power, though rightly undefined, can not ordinarily be utilised for permitting a Court to reverse its earlier order on the sole ground that it is later found to be erroneous on the merits. The great principle stated by Lord Cairns in Rodger v. The Comptoir D''escompte De Paris, (1871) Lr 3 Pc 465 in the following words:-

". . . . . one of the first and highest duties of all courts is to take care that the act of the Court does no injury to any of the suitors", does not in my view, mean that whenever a Court after wrongly deciding a case between two parties discovers that the decision was erroneous, it has inherent jurisdiction to reopen the matter and set it right by reserving the earlier decision. Ordinarily, when a Court has made a mistake the aggrieved party has to get in corrected by appeal, revision or review and not by invoking the inherent power u/s 151 of the Code which is only intended to secure the ends of justice or to prevent the abuse of the process of the Court. The ends of justice contemplated by Section 151 extend all the litigating parties before the Court and are not confined to the right of only one of them. I am not unmindful of the fact that the petitioner is a local authority which is being deprived of the fruits of the order an in its favor, but it must not be forgotten that the law does not confer any special privilege on the local authority to sleep over its rights by neglecting the legal remedies open to it and after the expiry of limitation, to resort to the inherent powers of the Court, ignoring the rights which have, by reason of its own neglect, accrued to the opposite party. The persons put in charge of the affairs of local bodes, like the petitioner in this Court, are more or less in the position of quasi-trustees and they are expected to perform their duties with due care and attention. Failure to do so without reasonable cause, might well expose them to the risk of being proceeded against for making good the loss suffered by the public body and it is High time that this aspect is duly considered by the authorities concerned and given the importance it deserves in a set-up like ours. This Court has to administer law equally and no favor outside the law can be shown to the local bodies like the petitioner on the facts and circumstances of this case. In my opinion, the order of the Court below is unexceptionable and it is not easy to hold that the Court below has committed any serious jurisdictional, constitutional or similar illegality in declining u/s 151 of the Code to set aside the order made nearly 13 months earlier .

(6) For all foregoing reasons, this revision fails and is dismissed with costs.

(7) Revision dismissed.