Sewakram vs State Bank of India - 1989 Supreme(MP) 599

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Applicant : K.N. Puntambekar.
For the Respondent: S.C. Consal.

Headnote:(1)Civil Procedure Code, 1908 – O. 39, R. 6 – application under – no affidavit is required – moveable property may be ordered to be sold for just and sufficient cause.
       (2)Civil Procedure Code, 1908 – O. 39, R. 10 – hypothecate is supposed to be in legal possession though debtor remains in physical possession.
       (3)Civil Procedure Code, 1908 – S. 115 – revisional jurisdiction – all errors do not fall within the coverage of this provision.
        Short Note
       1. This revision petition is directed against the order dated 23.8.1989 passed by the Vth Additional Judge to the District Judge, Indore in Civil Suit No. 108 – B/88 whereby the application of the respondent no. 1. State Bank of India under order 39, rule 6 read with section 151 of the Code of Civil Procedure, 1908 (for short the Code) for sale of the bus in question has been allowed.
       2. Order 39, Rule 6 of the Code provides for interim sale of moveable property constituting the subject – matter of a suit. A perusal of the provision therein embodied shows that there is no requirement of any affidavit and it is not only when the property is subject to speedy and natural decay that it may be sold but it further authorises the Court to direct sale of moveable property being the subject – matter of the suit which for any other just and sufficient cause it may be desirable to have sold at once.
       3. In the decision in Jimmy Restaurant's Case 1980 (1) MPWN 11, which pertains to order 39, rule 10 CPC, it has been pointed out that hypothecation is an extended idea of pledge. Therefore, if the creditor has permitted the debtor to retain possession, the debtor retains that possession either on behalf or in trust for the creditor. The hypothecate is supposed to be in legal possession and custody of the property though its physical possession is with the debtor.
       4. In the decision in Balaram's Case 1983 MPWN 116, it has been pointed out that where under the terms of the letter of hypothecation the Bank would have right to take possession of the hypothecated tractor and sell it in realization of the loan, it was in the fitness of things that the trial Court had directed the tractor to be sold in the face of the recalcitrant conduct on the part of the debtor to repay the instalments of the loan.
       5. The decision in Balkrishna Agarwal's Case 1984 JLJ 90, is not very apposite and so also the decision in Jagdishlal's Case 1979 (2) MPWN 210. It may be pointed out that these decisions lay down that it is only when hypothecation is admitted in a manner amounting to admission of a claim entitling the Court to pronounce judgment in terms or rule 6 of order 12 of the Code that Court may order that the subject – matter of suit capable of delivery may be deposited in Court to deliver to the party for which the party is held as trustee. It may be noted that the requirement of admission embodied in rule 10 of order 39 is not to be found in order 39, rule 6.
       6. It may be noted that the provision in section 115 of the Code is not directed against conclusions of law or facts howsoever erroneous in which the question of jurisdiction is not involved. Unless the case is one of erroneous assumption of jurisdiction or the erroneous failure to exercise jurisdiction or the exercise of jurisdiction illegally or with material irregularity by the subordinate Court, interference thereunder cannot be made. Not all errors fall within the coverage of section 115 of the Code. The decision in J.M.A. Raju's Case AIR 1976 Guj. 72, may usefully be perused.
       7. In its jurisdiction a Court may decide wrong as well as right. Where a Court acting within its jurisdiction renders a decision which is wrong in fact or law, it is not a case of failure to exercise jurisdiction and interference with the decision would be permissible only if it is shown that the Court acted illegally or with material irregularity in exercise of its jurisdiction. The decision in Choube Jagdish Case AIR 1959 SC 492, may usefully be perused. 1984 JLJ 90 and 1979 (2) MPWN 210 distinguished. 1983 MPWN 116, 1980 (1) MPWN 11, 1986 MPLJ 720, AIR 1976 Guj. 72, 1988 Cr. L.R. 366 (SC), AIR 1959 SC 492 and 1985 JLJ 356 relied on. Revision dismissed.