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SUPREME COURT OF INDIA
K. SUBBA RAO, RAGHUBAR DAYAL AND J.R. MUDHOLKAR, JJ.
Manindra Land and Building Corporation Ltd.,. Appellant
Versus
Bhutnath Banerjee and others, Respondents.
Civil Appeal No. 524 of 1962.
2nd May, 1963
Advocates appeared
Mr. N. C. Chatterjee, Senior Advocate, (Mrs. E. Udayarathnam and Mr. D. N. Mukherjee, Advocates, with him), for Appellants; Mr. B. Sen, Senior Advocate (Mr. S. Ghosh, Advocate, with him), for Respondents. Nos. 1 to 3.
-it is not open to the High Court to question in revision - Manindra Land and Building Construction Co. v. Bhutnath Banerjee, AIR 1964 SC 1336; Pandurang v. Maruti, AIR 1966 SC 153; Indore Municipality v. K.N. Palsikar, AIR 1969 SC 579; M/s. Trojan and Company v. R.M.N. Nagappa, AIR 1953 SC 235.
-it is only in cases where the subordinate Court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be invoked - Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee, AIR 1964 SC 1336; Abbasbhai Alimahomed v. Gulamnabi, AIR 1964 SC 1341; Pandurang v. Maruti, AIR 1966 SC 153; M/s. D.L.F. Housing and Construction Co. v. Sarup Singh, AIR 1971 SC 2324; M/s. Misrilal Parasmal v. Sadasivah, AIR 1965 SC 553; Roshan v. Ishwar, AIR 1962 SC 646; Satyanarayan v. Malekarjun, AIR 1960 SC 137; Delhi Municipal Corporation v. Suresh Chandra, AIR 1976 SC
Key Points: - The judgment discusses the High Court’s revisional powers under S. 115 CPC in cases involving questions of jurisdiction and whether a subordinate court has exercised jurisdiction properly; it clarifies that revisional interference is allowed for jurisdictional errors, not merely erroneous findings of law or fact (!) (!) (!) . - It holds that a Court can admit an application under S. 5 of the Limitation Act if sufficient cause is shown for not presenting within time, affecting the period for setting aside abatement under Order XXII Rule 9(2) (!) (!) . - It distinguishes cases where the question concerns jurisdiction as a law question from cases where the question is within the court’s jurisdiction to decide; misapplication of limitation law can render a decision reviewable in revision if it affects jurisdiction (!) (!) . - It confirms that the trial court’s findings on sufficient cause are factual and should not be reversed in revision unless they involve jurisdictional error; High Court’s interference is limited to questions of jurisdiction or illegal exercise of jurisdiction (!) (!) . - The appeal was allowed, the trial court’s order restored, enabling further execution proceedings (!) (!) . - It cites Manindra, Abbasbhai Alimahomed, Pandurang, D.L.F. Housing, and Misrilal Parasmal as authorities on when revisional jurisdiction can be invoked (jurisdictional issues or illegal exercise) (!) (!) . - It clarifies the distinction between deciding a question of law pertaining to jurisdiction versus merely erroneous application of limitation periods (!) (!) . - It emphasizes that Section 3 of the Limitation Act requires dismissal of suits or applications beyond prescribed periods, while Section 5 allows admission of delayed applications for sufficient cause (!) (!) . - It references the appellate outcome: appeal allowed and order set aside; case to proceed according to law (!) .
Judgement
RAGHUBAR DAYAL, J. : This appeal, by special leave, is directed against the order of the Calcutta High Court allowing the application of the appellant under sub-r. (2) of R. 9 of Order XXII of the Code of Civil Procedure, hereinafter called the Code, for the setting aside of the abatement of the suit it had instituted against the father of the respondents.
2. The suit was instituted on April 29, 1952, by the appellant corporation against Kalosashi Banerji, father of the respondents, to recover a sum of money due on a mortgage by deposit of title-deeds. The defendant contested the suit. Ultimately, a preliminary decree in the suit was passed ex parte on February 8, 1955. On an application presented on June 11, 1955, final decree was passed on June 23, 1955.
3. The first application for execution of the decree presented on August 30, 1955, was dismissed for default on October 4, 1955, on account of the decree-holder not taking any steps as a result of the report of the process server dated September 14, 1955, stating that the defendant Kalosashi Banerji had died.
4. The second application for execution of the decree against the defendant s legal representatives was presented on September 20, 1956. On January 30, 1957, the respondents filed an objection under S. 47 of the Code and on March 1, 1957, they disclosed the date of death of Kalosashi to be July 20, 1954, by producing a certified copy of the death register showing the date.
5. Thereafter, the appellant filed the application for substitution, on setting aside the abatement. The respondents opposed this application and the learned Subordinate Judge, however, held that the appellant had established that it was prevented by sufficient cause from continuing the suit and, allowing the application, set aside the abatement of the suit. The respondents then went up in revision to the High Court. The High Court disagreed with the Subordinate Judge and held that the appellant had entirely failed to make out any good cause for the delay in applying for the setting aside of the abatement and for applying for substitution much later than the period allowed by law.
6. Kalosashi, the defendant, died on July 28, 1954. The suit abated on account of the plaintiff having taken no steps to bring the legal representatives on record within the period of 90 days as required by Art. 176 of I Schedule to the Limitation Act. The appellant could have applied for the setting aside of the abatement within the next 60 days in view of Art. 171. Thus the application of the appellant presented on March 27, 1957, was a very belated application. The appellant therefore had to satisfy the Court in two respects. Firstly it had to satisfy the Court, in order to obtain advantage of the provisions of S. 5 of the Limitation Act which applies to applications under R. 9 (2) of O. XXII in view of sub-r. (3) of R. 9 of that Order, that it had sufficient cause for not making the application within the period of limitation prescribed for an application to set aside the abatement of the suit and, secondly, it had to establish that it was prevented by any sufficient cause from continuing the suit by making an application under R. 4 of O. XXII for the legal representatives of the deceased defendant to be made parties to the suit within the prescribed period of limitation. To satisfy the Court in these respects, the appellant had to show when it learnt that the defendant had died prior to the passing of the decree, that it was necessary to implead legal representatives of the deceased in the suit and that the delay in knowing of this fact and in its applying for the setting aside of the abatement of the suit was not due to laches on its part. On these two questions of fact the findings of the trial Court were in its favour.
7. It is not necessary for the purpose of this appeal to state the reasons which were urged as a justifiable excuse for the inability of the appellant to take the necessary steps earlier. It is not
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