K CHELLIAH SERVAI Vs. P MUTHUSAMI SERVAI

JUDGEMENT

(1.) The property which is the subject-matter of the appeal was owned by P. S. Kootapan Udayar who was adjudged as an insolvent by the sub-court, devokottai. As a consequence the property came under the control of the official Receiver. The appellant purchased the property in public auction-sale held on 18/12/1972 at the instance of the Official Receiver. The appellant took possession of the property and thereafter filed an application before the insolvency court for the release of the said property. By a summary order dated 8/12/1975, the insolvency court rejected the application so far as the property in dispute was concerned. The appellant-plaintiff instituted a suit for setting aside the summary order. The trial court decreed the suit. The lower appellate court upheld the judgment and decree of the trial court. The High court, however, reversed the concurrent findings reached by the courts below and dismissed the suit. This appeal by way of special leave is against the impugned judgment of the High court.

(2.) We have heard learned counsel for the parties. Learned counsel for the appellant has contended that the High court exceeded its jurisdiction under section 100 of the Civil Procedure Code by interfering with the concurrent findings of fact reached by the two courts below. According to him the High court set up an entirely new case at the stage of second appeal. It is contended that the point which found favour with the High court was neither pleaded nor argued. No issue was framed in that respect. The argument in a nut-shell is that the High court was not justified in permitting the respondent to raise a new issue and on that basis reversing the findings of fact reached by the trial court and the lower appellate court. We see considerable force in the contentions of the learned counsel.

(3.) The High court non-suited the appellant on the ground that the boundaries of the property in dispute did not tally with the evidence produced on the record. According to the High court, the identity of the property in dispute could not be established by the appellant and, as such, the official receiver was not competent to sell the same. It is not disputed that there were neither pleadings nor an issue framed on this point by the trial court. Mr B. Kanta Rao , learned counsel appearing for the respondent does not dispute that the point on which the High court allowed the second appeal was not an issue before the two courts below. We are of the view that in the second appeal it was not open to the High court to have gone into a question which was neither pleaded nor raised or dealt with by the trial court and the lower appellate court. The High court, in the facts and circumstances of this case, exceeded the jurisdiction vested in it under Section 100, Civil Procedure Code.