SHIVBASAPPA CHINNAPPA MUGHI Vs. MARIGOWDA HUCHANGOWDA ACHAMATTI

JUDGEMENT

(1.) The facts material for the purpose of this appeal are as follows. One Nilava filed a suit No. 107 of 1927 against Marigowda who is the respondent and other defendants to recover certain property as the heir of a deceased person. The suit was filed in forma pauper is and the defendant Marigowda applied that security for costs should be taken from the plaintiff. This was ordered to be done, and Shivbasappa, who is the appellant, entered into a surety bond making him self liable to pay the plaintiff's costs in the suit. The suit was dismissed with costs. An appeal has been filed, No. 126 of 1930, which is still pending in this Court. In the meantime the respondent took out execution (darkhast No. 623 of 1930) against Nilava and Shivbasappa the appellant. In these proceedings he applied that the amount of costs awarded to him should be realised by sale of the property of Shivbasappa, and on September 21, 1931, the Court ordered that his property should be sold. Shivbasappa then made an application to the Court under Order XLI, Rule 6(2), of the Civil Procedure Code, for stay of the order of sale pending the decision of the appeal. He stated in the application that he was willing to abide by any terms the Court may impose upon him. The Court rejected the application in the following order : I do not think that Order XLI, Rule 6, Clause 2, applies to this case. Execution is now taken against the surety of the judgment-debtor for the costs. Rule 6, Clause 2, is evidently meant to apply to the property which is the subject-matter of the suit, against the decree in which an appeal is pending. It does not cover the case of a sale of immoveable property of the surety. Otherwise the words on the application of the judgment-debtor would not have been specified. The surety is not the judgment-debtor.

(2.) Mr. Patil who appears for the respondent has taken up a preliminary objection that no appeal lies. He refers to Janardan Triumbak V/s. Martand Triumbak (1920) I.L.R. 45 Bom. 241 Husain Bhai V/s. Beltie Shah Gilani (1924) I.L.R. 46 All. 733 and U San Wa V/s. U Chit San (1931) I.L.R. 9 Ran. 354. In none of these cases were the Courts concerned with an order under Order XLI, Rule 6 (2), of the Code. Mr. Nilkant Atmaram who appears for the appellant has cited the case of Md. Fazal Azim V/s. Mutsadi Lal [1927] A.I.R. Lah. 915 where it has been held that Section 47 of the Code is comprehensive enough to include an order under Order XLI, Rule 6, and permits the institution of an appeal against an improper order passed under that section. This is a decision of a single Judge, but it follows the decision of another Judge of the Lahore High Court in an earlier case in Firm Phallu Mal v. Banarsi Das [1924] A.I.R. Lah. 631. In Sir Dinshah Mulla's Edition of the Code, under Order XLI, Rule 6, there is a note that no appeal lies from an order under this rule, but, as pointed out in the case to which I have just referred, no reason is given nor authorities cited in support of that proposition.

(3.) The question whether an appeal lies may be open to doubt. I do not think it necessary to decide it in this case because, even if no appeal lies, this appeal may be treated as a revision application. Where a Court has jurisdiction to make an order and refuses to make it on the ground that it has no jurisdiction that is a good ground for interfering in revision under Section 115 of the Code. I may refer to the cases cited on this point in Mulla's Commentary at p. 346. It is clearly a case of failure to exercise the jurisdiction vested in the Court. If the application was one made by the judgment-debtor within the meaning of the rule, then the Court not only had jurisdiction to make the order asked for but was bound to make it. It refused to make the order on the ground that the applicant was not the judgment-debtor and was not, therefore, entitled to rely upon the rule.