INDUBHUSHAN DAS Vs. HARICHARAN MANDAL

JUDGEMENT

(1.) This is a rule granted by my learned brother Mukerji, J., calling upon the opposite parties to show cause why the order of the Munsif of Boalia, dated 3 July 1929, allowing the application of the petitioners before him to get possession of the properties in question from the decree-holder and the alleged purchasers should not be set aside, and the application before the learned Munsif dismissed, or such other or further order made as to this Court may seem fit and proper. The petitioners before me are firstly the plaintiff auction-purchaser in a mortgage suit; and secondly three persons, who are alleged to be subpurchasers of the properties brought to sale and purchased by the judgment creditor, the first petitioner. The opposite parties, with whom I am chiefly concerned, are certain cosharers of the defendants in the mortgage suit. After the properties had been purchased by the judgment-creditor he succeeded in obtaining possession of them, and within 30 days thereafter the opposite parties made an application under Order 21, Rule 100, Civil P. C, complaining that although not judgment-debtors, they had been dispossessed of the immovable properties in the mortgage suit by the decree holder as auction purchaser. At a later date notice was given by the judgment-creditor to the applicants before the learned Munsif that certain portions of the mortgaged properties in question had been transferred to purchasers. But after a period of more than 30 days from the receipt of such notice the applicants before the Munsif prayed for and obtained leave to add such purchasers as opposite parties to their petition. The learned Munsif then proceeded to investigate the matter and made the order to which I have referred and which I am asked to set aside or otherwise to vary. He has delivered a judgment of some length and has treated the question of possession in considerable detail. It is made a ground of complaint that he has misapplied the onus probandi in the matter of the presumption of joint-ness of the family of which the defendants in the mortgage suit and the applicants before him are members.

(2.) Now it is urged by the opposite party that this is not a case where this Court should, in its discretion, proceed to give relief in the exercise of its revisional powers under Section 115, Civil P. C, and it is pointed out that Rule 103, Order 21, confers upon any party who is not a judgment-debtor and against whom an order is made under Rule 101, Order 21, power to institute a suit to establish the right he claims to the possession of the property. I think the learned advocate for the opposite party goes too far when he says that it is almost the invariable rule of the Court to refuse to make use of its revisional powers in a case where there is another legal remedy open to the applicant. He has referred me to the case of Chandi Roy V/s. Kripal Ray [1911] 10 I.C. 308. It was a case where the Court refused in the exercise of its revisional jurisdiction to go into the question whether or not the subordinate Court had acted with irregularity in refusing to give leave to amend certain pleadings and observed that there was legal redress open to the applicant, inasmuch as, if the decree which would be ultimately passed in the suit went against him, he would be able to call such a decree in question by way of an appeal and make the refusal to grant leave to amend one of his grounds for appealing. I have also been referred to an unreported case decided by Suhrawardy and Cuming, JJ., where they refused, in circumstances analogous to those before me, to interfere on grounds similar to those in the case which I have just cited. At the same time it is undeniable that in several cases the Court has used its revisional powers to modify orders of the subordinate Courts made under Order 21, Rule 101, Civil P.C. It will be sufficient if I refer to the case of Radha Gobinda Misra V/s. Raghu Nath Misra [1913] 20 I.C. 253 and also to the case of Raikishore Gope V/s. Bhabatosh Chakravarty to show that this Court does in certain circumstances use its powers of revision to correct errors or illegalities of subordinate Courts in proceedings under Rule 101, Order 21, and also in proceedings in connexion with the investigation of claims to which, it appears to me, similar considerations apply. I therefore consider that it is a question to be decided, in the circumstances of each case, whether a Court will, in revision, go into the matter or relegate the party to a suit. Having regard to the comparatively complicated nature of the facts before the learned Munsif and to the contention that he has misapplied the onus of proof, occasioning thereby an erroneous conclusion of fact, it appears to me that this is a case with which it is extremely difficult to deal in revision and one which can be more satisfactorily decided in a separate suit; and for that reason, if for no other, I should, in my discretion discharge the present rule.

(3.) I think however it is right that I should deal very briefly with some of the matters which are raised before me.