DHOOM CHAND JAIN Vs. CHAMAN LAL GUPTA

JUDGEMENT

(1.) Chaman Lal Gupta the respondent, instituted suit No. 27 of 1949 for recovery of about Rs. 11,000/- from the appellant, his brother Daya Chand Jain, and Shambhu Lal and Sons, their joint family business, During the pendency of the suit Chaman Lal Gupta got an order of attachment before judgment of bungalow no. 1 B.P. Jain Road, of quarters No. 1 to 12 and 13 to 24, British Infantry Bazar, of No. 116, Cowshed, Royal Artillery Bazar and of No. 46, Royal Artillery Bazar. The suit was decreed for Rs. 11,646/-approximately on August 13, .1956. On April 4, 1957 Chaman Lal Gupta applied for execution of his decree by sale of the aforesaid attached proper- ties. It appears that Mainawati, a sister of the appellant and Payal Chand Jain, also held a money decree against them. In execution of her decrees she also applied for sale of the aforesaid properties, Thus at one and the same time two decree-holdeds, Chaman Lal Gupta and Mainawati, were proceeding against the aforesaid properties. It appears that the said properties were sold first in execution of Mainawati's decree, Chaman Lal filed an objection in her execution case. His objection was allowed and the sale was get aside on may 24, 1958. But before that on November 21, 1957, those properties were also sold in the execution proceedings started by Chaman Lal Gupta himself. The appellant moved an application for setting aside the sale in the execution case started by Chaman Lal Gupta under Rule 90 of Order XXI Civil Procedure Code. The application was dismissed by the execution Court. It held that the appellant had no interest in the properties in dispute and that no substantial prejudice had been caused to him by irregularities in the auction sale The appellant then filed an appeal in this Court against the order of the execution Court dismissing his application. The leaded single Judge dismissed it on a preliminary ground that the appellant's objection could not be entertained for his failure to deposit security as required by Clause (b) of the proviso to Rule 90. This special appeal against the order of the learned single Judge has been preferred under Rule 5 of Chapter VIII of the Rules of Court. This rule is a replica of Clause 10 of the Letters Patent and is made under Article 225 of the Constitution.

(2.) Learned counsel for the respondents has raised a Preliminary objection that the special appeal is barred by the provisions of Section 104 Civil Procedure Code. Sub-section (1) of Section 104, in so far as it is material in this, case, provides that an appeal will lie only against those orders against which an appeal is provided for in Rule 1 of Order XLIII Civil Procedure Code. The appeal before the learned single Judge was preferred under Sub-section (1) of Section 104 read with Rule 1 of Order XLIII. Sub-section (2) of Section 104 provides that no second appeal shall lie against an Order made in an appeal under Sub-section (1). The Legislature, which enacted Sub-section (2), was competent to enact a law taking away the appellate jurisdiction under Clause 10 of the Letters patent, and apparently Sub-section (2) would bar this special appeal, Learned counsel for the appellant has however argued that the jurisdiction of entertaining special appeal survives the impact of Sub-section (2) of Section 104 behind the shield of Section 4, Civil Procedure Code. Sub-section (1) of Section 4, which alone is material here, provides that in the absence of any specific provision to the contrary nothing in the Code shall be deemed to limit or otherwise affect any special law in force or any special jurisdiction or power conferred by or under any other law for the time being in force, The power of the High Court to entertain a special appeal is a special jurisdiction or power conferred on it by its Letters Patent earlier and now by Rule 5 of Chapter VIII of the Rules of Court, and Sub-section (2) of Section 104 cannot be said to be a specific provision contrary to Clause 10 or Rule 5, It cannot therefore freeze that special jurisdiction or power.

(3.) Reliance is placed on Muhammad Naimullah Khan, v. Ihsanullah Khan, ILR 14 All 226 and Piarelal v. Madanlal, ILR 39 All 191 : (AIR 1917 All 325 (2)). The first case was decided under the Civil Procedure Code 1882, which did not contain any provision analogous to Section 4 of the present Code. That decision is not good law now. The second case was decided under the present Code, but the learned Judges were not referred to Section 4. It was snot followed by the Court subsequently (Ram Sarup v. Mt. Kaniz Ummehani, AIR 1937 All 165) and is now impliedly Overruled by the Supreme Court (Union of India v. Mohindra Supply Co. 1962 :All LJ 1 at p. 7 : (AIR 1962 SC 256 at p. 262)).