1985 Supreme(MP) 467

Gulab Gupta, J.
Gorelal v. Motilal.
C. R. No. 856 of 1983 (J): Decided on 27-9-1985.

Headnote:(1) Court -- is constituted for doing justice according to law -- possesses powers to do tire right and undo a wrong.

        (2) Civil P. C., 1908 -- S. 151 -- case or topic falls under express provision of the Code -- recourse to inherent powers not permissive.

        (3) Civil P. C., 1908 -- S. 151 -- Court can recall its own order under inherent powers.

        (4) Civil P. C., 1908 -- S. 151 -- inherent powers under -- should always be exercised when injustice is caused due to an action of the Court.

        (5) Legal Maxims -- actus curiae seminum gravabit -- means "an act of Court shall prejudice no one".

        (6) Civil P. C., 1908 -- O. 21, Rr. 89, 90 & 91 and S. 151 -- no remedy provided to set aside sale under O. 21, Rr. 89 to 91 -- recourse of inherent powers can be taken.

        It appears that the non-applicant No. 1 Motilal filed a suit in the Court of Small Causes against the applicant and obtained a decree for a sum of Rs. 437/- only. The applicant deposited Rs. 50/- on 20-3-1978 but failed to pay all the decretal amount. Since the decree was put in execution, the applicants entire agricultural holding of 23.17 acres was attached. Thereafter, the non-applicant decree-holder himself applied to the Court that decree would be satisfied only by selling land forming part of khasra No. 197 and measuring 4.98 acres. On this application, the executing Court passed an order dated 17-7-1976 directing that only khasra No. 197 be sold in execution of the decree. Inspite of the aforesaid order, the entire holding was auctioned and ultimately purchased by the non-applicant No. 2 for a sum of Rs. 2,000/- only. On this the applicant made an application to the executing Court under section 151 CPC, praying for setting aside the sale. In this application the applicant also submitted that he has paid the decretal amount to the decree-bolder and thereby satisfied the decree. The executing Court was of the view that the applicant knew the entire proceedings and yet did not take any objection as required under law. According to the learned executing Court the sale has been confirmed on 7-2-1979 and hence he cannot now be heard in the matter. It was also the view of the executing Court that objection to the sale cannot be taken only in accordance with order 21 of the Code and since those objections were not taken under those provisions, remedy under section 151 CPC is not available. The application was accordingly dismissed. That is how the matter is in this Court in the present civil revision filed under section 151 of the Code of civil Procedure.

        It is well settled that every Court is constituted for the purpose of doing justice according to law and must be deemed to possess as a necessary corollary and as inherent in its very constitution, all such powers as may be necessary to do the right and to undo a wrong in the course of administration of justice. Section 151, CPC only expresses such a power in clear and unambiguous term and indicates the intention and desire of the legislature to see that justice is done in every case. It is true that it has been held by various decisions of the Supreme Court and this Court that in so far as the matter in question in any particular case or topic falls within the ambit of the express provisions of the Code, the inherent powers of the Court to that extent, be regarded as abrogated by the legislature. The Court cannot have recourse in such cases to inherent powers. [Mainsingh v. Koonwarjee (AIR 1970 SC 997); Ramkarandas v. Bhagwandas (AIR 1965 SC 114) and Dulichand Bhuraji v. Chainsingh Bachusingh (1966 JLJ 9 7]. Inspite of it, it has always been accepted that the Court has inherent power to recall its own orders and correct its own mistakes. (Keshardo v. Radha Kishan, AIR 1953 SC 23). Applying these principles it has been held that the rules in order 21 and order 41 relating to the stay of execution do not exhaust in case in which stay can be granted and the Court can under its inherent powers stay its own process except where its jurisdiction is taken away. [H. S. Vodayar v. The Vijay Bank Ltd. (AIR 1951 Mad. 321); and Balstaun v. Dinshaw (AIR 1927 Cal. 581). Similarly, it has been held that Courts have inherent powers to set aside or refuse to confirm an execution sale in cases not provided for by order 21, rules 89 to 91 [Brij Mohan Thaktoor and another v. Rai Uma Nath Chowdhry & others (19 Indian Appeals 154 (PC): Fatima Sultana v. J. Eswaraprasad (AIR 1977 Ap 55) and Syed Abrar Ahmed Anwar Ahmad v. Babulal Narmada Prasad 1968 JLJ 394). Similarly in Pankaj Kumar Pakihira v. Nani Bala Pakhira (ILR 1968 (I) Cal. 43) a Division Bench of Calcutta High Court has held that Court can set-aside execution sale under its inherent powers for material irregularity or fraud even when the applicant though vitally interested in the property bas no locus standi to make the application. More or less similar view has been taken in Ismail Rowther v Mynoon Bivi (AIR 1966 Mad 84). These decided cases clearly bring out the principles behind the inherent power of the Court which is to remedy the injustice and sufficiently indicate that this power has always been utilized when the injustice is caused because of an action of the Court. This is what the maxim actus curiae seminum gravabit means and purports to assure. "An act of Court shall prejudice no one" had been the basic foundation of every civilized jurisprudence from the beginning and there is no reason we should think that our jurisprudence does not give effect to this policy of the law. Indeed, the aforesaid decided cases should sufficiently establish that this principle has been jealously followed in this country. That appears to be the reason why the Supreme Court in Krishana Kumar v. J & K State, AIR 1967 SC 1960, held that an order passed by the Court in execution, ignoring stay proceedings, can always be corrected.

        Let us then examine the facts of the case in the context of aforesaid law. There is no dispute between the parties that on the application of the decree-holder himself the Court directed by its order dated 17-7-1976 that only khasra No. 197 measuring 4.98 acres alone should be sold. In the context of this order, it becomes the responsibility of the Court to see nothing more is sold. If inspite of it, the applicants entire holding has been sold, it should be the duty and responsibility of the Court to correct and do justice. The Court should not feel helpless in such cases only because no one has objected to such a sale. It is true that such a sale would have been stopped or set aside if an objection was properly taken by the applicant. But this should not be the end of the matter as what is at the stake is the efficacy of our system of administration of justice. The basic principles that an act of Court should not prejudice anyone, cannot be overlooked or else the whole purpose of conferring inherent powers in the Court would be frustrated. In this view of the matter, this Court is not able to appreciate the helplessness of the Executing Court in the matter which is express d in the following sentence appearing in the impugned order:-

        ^^;|fi en;wu ds lkFk FkksM+h T;knrh gks xbZ gS rFkkfi fo/kkukuqlkj U;k;ky; mldh dksbZ enn ugha dj ldrhA**

       Once it is realised that the said injustice or ZIADATI has been done by the Court itself the aforesaid helplessness should cause concern. This Court is, however, unable to subscribe 10 the aforesaid view. It is, on the contrary of the opinion that the Court has full authority and jurisdiction to exercise its power under section 151 CPC and remove the cause of injustice. AIR 1970 SC 997, AIR 1965 SC 114, 1966 JLJ 997, AIR 1953 SC 23, AIR 1951 Mad. 321, AIR 1927 Cal. 581, 19 I A 154 (PC), AIR 1977 AP 55, 1968 JLJ 394, ILR (I) Cal. 43, AIR 1966 Mad 84 and AIR 1967 SC 1360 relied on. Revision allowed.