RAGHUBAR DAYAL, J.

( 1 ) TWO plots Nos. 62/1 and 64/3 in village Sahawali, Pargana Rajpura, Tahsil Gunnaur, District budaun, were mortgaged in 1891 with possession. The representatives of the mortgagor applied under Section 12, U. P. Agriculturists Relief Act (No. 27 of 1934) for an order directing that the mortgage be redeemed and that they be put in possession of the mortgaged property. They deposited Rs. 65/- alleging it to be the amount which was due on the mortgage. The representatives of the mortgagee objected to the redemption of the mortgage and the assistant Collector enquired into the matter and held that plot No. 62/1, which corresponded to the theft plot No. 111, had not been mortgaged and that Rs. 65 was the amount due under the mortgage. He ordered redemption of the mortgage with respect to plot No. 64/3, corresponding to the then plot No. 77, payment of the money deposited to the mortgagee and delivery of possession to the mortgagor. On appeal to the District Judge under Section 23, Agriculturists Belief Act, the order of the assistant Collector was maintained. The appellate order was passed on 14-4-1945.

( 2 ) IN May 1949 more than three years after the passing of the appellate order the representatives of the mortgagor-decree-holders applied in execution for the recovery of possession. This application was dismissed as time-barred.

( 3 ) THE representatives of the mortgagor then filed another application under Section 12, agriculturists Relief Act in the court of the Assistant Collector. The representatives of the mortgagee again objected to the redemption on the ground that the decision in the previous proceedings under Section 12, Agriculturists Relief Act operated as res judicata and barred the second suit. The Assistant Collector did not agree with this contention and ordered the redemption of the mortgage with respect to both the plots. On appeal by the representatives of the original mortgagee the appellate court reversed the order of the Assistant Collector and dismissed the application under Section 12, Agriculturists Relief Act. It is against this order that the applicants, representatives of the mortgagor, have filed the present application in revision contending that the decision of the court below is wrong.

( 4 ) IT has been contended for the opposite party that the order of the court below, right or wrong, is not revisable under Section 115, Civil P. C, Reliance is placed on the case reported in

keshardeo v. Radha Kissen, AIR 1953 SC 23 (A ). It is contended that the court could decide a question wrongly and by deciding, a question wrongly the court did not act Illegally or with material irregularity in the exercise of its juris diction which the court below undoubtedly possessed over the subject-matter of dispute. It is true that the court does not commit any illegality or irregularity in the exercise of its jurisdiction on account of its deciding any question of fact or law wrongly, but it has been held by the Privy Council in -- "joy Chand Lal v. Kamalaksha Chaudhury, AIR 1949 PC 239 CB), that

"if the erroneous decision results in the subordinate court exercising a jurisdiction not vested in it by law or failing to exercise a jurisdiction so vested a case for revision arises under sub-section (a) or Sub-section (b), and Sub-section (c) can be ignored. "

This principle of law has been endorsed in the Supreme Court case relied on by the learned counsel for the opposite party. The Privy Council, however, in continuation of the quotation made in the Supreme Court case further observed :"the cases of -- babu Ram v. Munna Lal, AIR 1927 All 358 (C) and -- hari Bhikaji v. Naro vishvanath, 9 Bom 432 (D), may be mentioned as cases in which a subordinate court by its own erroneous decision (erroneous that is in the view of the High Court), in the one case on a point of limitation and in the other on a question of res judicata, invested itself with a Jurisdiction which in law it did not possess, and the High

Click Here to Read the rest of this document