RADHAKRISHNA FILMS P Vs. CHANDY VARUGHESE

JUDGEMENT

(1.) This Civil Revision Petition by a creditor arises from an insolvency proceeding wherein one deceased Mathai Chandy was sought to be adjudicated upon as an insolvent. The petitioner obtained two decrees of about Rs.50,000/- against Mathai Chandy, whose sons and daughters inlaw are respondents before this Court. Within three months before the filing of the Insolvency Petition Mathai Chandy assigned away a decree which he had obtained against a third party for Rs. 8500/- in favour of the respondents for a nominal sum of Rs. 500/- with a view to defeat or delay the rights of the petitioner. So alleging the conduct of Mathai Chandy as an act of insolvency, the aforesaid petition was filed before the Subordinate Judge, but that petition was dismissed on 31-8-1965. As against the order of dismissal, an appeal was filed before the District Court, Kottayam, on 14-2-1956. There was a delay of 31 days in filing the said appeal. So a petition was also filed under S.5 of the Limitation Act to condone the delay. The learned Additional District Judge, on appreciation of evidence, found that there was no sufficient ground to excuse the delay. The delay petition was therefore dismissed, with the result that the appeal was also dismissed as it was barred by limitation. The present revision is filed against the dismissal of the appeal, contending that the lower appellate court was not correct in dismissing the petition to condone the delay, that there was sufficient ground to allow that petition and that accordingly the order of the lower court should be set aside sending back the appeal to that Court for disposal on merits in accordance with law.

(2.) The question that has firstly to be decided in this revision petition is whether it is within the jurisdiction of the High Court to interfere in revision with the finding of the learned Additional District Judge that there was no sufficient ground to condone the delay caused in filing the appeal before the lower appellate Court.

(3.) It is clear that the distinction between an appeal and a revision is a real one. The right of appeal carries with it a right of rehearing on law as well as on fact, unless any particular statute provides anything to the contrary. Under S.115 CPC. any way, the High Court's power in the revision is limited to see whether in a case decided there has been an assumption of jurisdiction where none existed, or a refusal of jurisdiction where it did, or there has been material irregularity or illegality in the exercise of that jurisdiction. That right is limited to jurisdiction and jurisdiction alone. The decision of the lower appellate Court in this case is based upon a conclusion of facts established in the case. In this regard, reference may be made to the often quoted decision in Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee ( AIR 1964 SC 1336 ). That decision considered the scope of S.115 CPC. On questions of fact where a conclusion is arrived at by the lower appellate Court on the basis of S.5 of the Limitation Act, it is pointed out that the question whether there was sufficient cause is exclusively within the jurisdiction of the Court and the Court can decide it rightly or wrongly. In that particular case, the plaintiff was prevented by sufficient cause from continuing the suit after the death of the original plaintiff, and sufficient cause having been shown, the lower appellate Court allowed the application and set aside the abatement of the suit. The High Court interfered with that finding of the lower appellate Court and held that the plaintiff had entirely failed to make out any good cause for the delay. It is in this connection that the Supreme Court said that the Trial Court had jurisdiction to determine whether there was sufficient cause for the plaintiff for not making the application for setting aside the abatement in time, and if so satisfied to admit it and the High Court fell in error in interfering with that finding of fact. In the light of the above decision, the finding of fact by the lower appellate Court that the petitioner did not establish sufficient ground to condone the delay cannot be set aside in revision. The lower appellate Court examined the Managing Director of the petitioner as Pw 1 and the effect of an affidavit produced on its behalf from its Advocate was also taken into consideration. The learned Additional District Judge found that the facts set out in the Advocate's affidavit were not made a ground for excusing the delay in the petitioner's affidavit filed in support of the condonation application. The learned Additional District Judge was not satisfied of the bona fides of the revision petitioner. The finding of fact so arrived at by the learned Additional District Judge is conclusive between the parties.