BIBHUTI CHARAN CHAKRABORTY Vs. TAPAN KUMAR SINHA

JUDGEMENT

(1.) The instant revisional application under Article 227 of the Constitution of India has been preferred by the Judgment debtor petitioner against the order dated 27.7.93 passed by the learned Additional District Judge, First Court, Nadia, in Civil Revision Case No. 1 of 1992 under section 115A of the Civil Procedure Code affirming the order No. 175 dated 14.12.91 passed by the learned Munsif Kalyani, Nadia in Misc. Judicial case No. 69 of 1991 under section 47 of the Civil Procedure Code arising out of Title Execution case No. 17 of 1987. The learned Munsif by his order dated 14.12.91 held that the aforesaid Misc. case brought by the present petitioner Judgment debtor is barred by limitation and that the same is also barred by the principles of res judicata under section 11 of the Civil Procedure Code. The learned Additional District Judge has affirmed both the above findings of the executing court under the impugned order.

(2.) At the beginning it must be borne in mind that the scope of the present application under Article 227 of the Constitution of India is very limited. In other words, this High Court in such matters cannot apply the principles of section 115 of Civil Procedure Code. It is well settled in law that the power of the High Court under Article 227 would not be exercised by it to substitutes its own Judgment whether on a question of fact or of law in place of the sub-ordinate courts or to correct an error not being an error of law apparent on the face of the record. It has been held by the Supreme Court in Duruwala v. Bhatena's case reported in AIR 1991, S.C page 1494 that in the exercise of jurisdiction under Article 227, the High Court can set aside or ignore the findings of fact of an inferior court or tribunal if there was no evidence to justify such a conclusion and if no reasonable person could possibly have come to the conclusion which the court or Tribunal has come to, or, in other words, it is a finding which was perverse in law. Except to this limited extent, the High Court has no jurisdiction to interfere with the findings of fact. The High Court will certainly interfere under Article 227 in respect of an order passed by the sub-ordinate revisional court when there is error of law apparent on the fact of the record, arbitrary or capricious exercise of authority, or discretion or when the sub-ordinate court has arrived at a finding which is perverse or based on no material or when the impugned order results in manifests injustice. Such a power under Article 227 may be exercised by the High Court also suo motu. In a case reported in 1989 (2) CHN page 338 (Paltu Dutta v. Smt. Nibedita Roy) it has been held by this High Court that in the matter of an order passed by the sub-ordinate Revisional court under section 115A Civil Procedure Code the High Court in its revisional power under Article 227 of the Constitution of India will only interfere in the case of manifestly gross injustice or abused of the process of the court or similar other extraordinary situation and that such a power is to be exercised only in rarest of rare case.

(3.) Before considering the impugned order in the light of the above principles of law has laid down by the apex court and by our High Court it would be helpful to refer to the following undisputed facts on record.