MUTHIAH CHETTIAR Vs. BAVA SAHIB

JUDGEMENT

(1.) This appeal and the Revision Petition relate to an Order by the District Munsif which the District Judge has confirmed, setting aside a sale in the following circumstances. The decree under execution directed the sale of items in a particular order, and the sale proclamation followed it. They were however sold in a different order, and the sale was confirmed. The judgment-debtor then moved the Court successfully under Order XXI, Rule 89 of the Code of Civil Procedure. After an appeal against the order dismissing that petition had failed, he applied under Order XXI, Rule 90 of the Code of Civil Procedure, obtaining an order excusing his delay in doing so. The District Munsif held that no case for interference under that rule had been established, but set aside the sale in the exercise of his inherent powers. The learned District Judge in the Order under appeal held that the delay could not be excused with reference to Sections 5 and 14 of the Limitation Act, but that the exercise of the Civil Courts inherent powers was not subject to the law of limitation and was justified by the circumstances of the case. He confirmed the District Munsif s order without deciding explicitly whether there was irregularity in the conduct of the sale or consequent loss, either with reference to Rule 89 or generally.

(2.) The existence of the inherent powers of Courts was first recognised by statute in the present Code, though it has frequently been the basis of decisions. It is necessary to scrutinise cases, in which it is relied on, closely in order that it may not, owing to that recognition or otherwise lead to arbitrary disposals, actuated by individual sentiment or mere disinclination for the exertion invoked in investigation of the law. It is necessary in order to such scrutiny here to ascertain what the necessity was for resort by the judgment-debtor the petitioner before the District Munsif and the 1st Respondent here, to the inherent powers of the court; that is what remedies he had under the Code of Civil Procedure and what obstacle by way of limitation or otherwise there was to his taking them. The Appellant s contention is shortly that he had his remedy under 0. XXI, Rule 90 or Section 47 of the Code of Civil Procedure, but lost it through his delay, and that in such circumstances the use of the court s inherent powers for his benefit is not justified.

(3.) Order XXI, Rule 90 of the Code of Civil Procedure deals with the circumstances in which sales may be vitiated by irregularity in their conduct; and here no doubt the complaint was that the court had no jurisdiction to sell as it did because the decree under execution authorised it to sell item 3 only after item 4, instead of, as it did, before it. There was therefore it is argued, not an irregularity to which Rule 90 applied but an illegality. Now it is doubtful whether this distinction is open to the 1st Respondent who proceeded statedly under Rule 90. Vide Venkata v. Sama (1890) I.L.R. 14 M. 227 and Tassaduk Rasul Khan v. Ahmed Husain (1893) L.R. 20 I.A. 176 but I pursue that argument no further, because if the proceedings are not under Rule 90 they were certainly under Section 47. In the former case it would have been necessary for the 1st Respondent to prove substantial loss. But in both cases he would have been out of time.