KESHAB CHANDRA DATTA Vs. BALLYGUNGE ESTATE PRIVATE LTD

JUDGEMENT

(1.) This Rule has been obtained against order No.42 dated the 23rd October, 1971 in Miscellaneous Case No. 28 of 1971 (arising out of Title Suit No. 58 of 1970) passed by the Second Subordinate Judge, Alipore. It appears that on the 17th August, 1970, the plaintiff instituted suit for specific performance of contract for transfer of Aleya Cinema to the plaintiff and, alternatively, for a decree for Rs.1,12,314.83 and for other reliefs. On November 25, 1970 an exparte decree was passed in the suit. The defendant, by this decree, was directed to execute and register a Deed of Transfer in respect of the said Cinema. The decree was sealed and signed on the 5th December, 1970. On January 27, 1971 notice of the Title Execution Case No.3 of 1971 was stated to have been served on the defendant. Since the defendant did not appear on the 27th February, 1971, the Court executed an Indenture of Conveyance. On the 1st March, 1971 the conveyance was registered.

(2.) On April 13, 1971 the defendant made an application under Order 9 Rule 13 of the Code on the ground of fraudulent suppression of summons. A miscellaneous case was started, being Miscellaneous Case No. 28 of 1971. The learned Trial Judge recorded the evidence of witnesses of both the parties and ultimately came to the conclusion that neither the summons nor the notice of the execution case was served on the defendant. The learned Subordinate Judge set aside, in the premises, the exparte decree by his order under challenge.

(3.) Mr. Sankardas Banerjee, learned counsel for the petitioner before us, opened his case by inviting us to consider the depositions of the various witnesses who were examined by the learned Subordinate Judge. Mr. Banerjee wanted us to hold that the evidence adduced by these witnesses had not been properly appreciated. We pointed out to him that in the exercise of our revisional jurisdiction we could not go into these questions. It may be that the Subordinate Judge is in error in his appraisal of the evidence adduced before him. But unless the error is a jurisdictional error, either of law or of fact, while exercising our powers under section 115 of the Code, we cannot interfere with the order passed by him. In this connection it would be enough to refer to one of the earlier decisions of the Supreme Court as also to its latest decision. In the case of (1) Keshardeo Chamria v. Radha Kishan Chamria, 1953 S.C.R. 136, it has been pointed out that as the order of the Subordinate Judge was one that he had jurisdiction to make and as he had, in making that order, neither acted in excess of his jurisdiction nor with material irregularities nor committed any breach of procedure, the High Court acted in excess of its revisional jurisdiction under section 115 of the Code and the order of remand and all proceedings taken subsequent to that order were illegal. The Supreme Court categorically reiterated that Section 115 applied to matters of jurisdiction alone, the irregular exercise or non-exercise of it or the illegal assumption of it, and if a subordinate Court had jurisdiction to make the order it had made and had not acted in breach of any provision of law or committed any error of procedure which was material and might have affected the ultimate decision, the High Court had no power to interfere however profoundly it might differ from the conclusions of that court on questions of fact or law.