HABIB BUX Vs. SAMUEL FITZ AND CO LTD

JUDGEMENT

(1.) This is a civil revision from an order passed by the District Judge of Jhansi allowing an appeal in an execution matter and disallowing the judgment-debtor's objection.

(2.) The first point raised is that no appeal lay to the District Judge. This contention, in my opinion, has no force whatsoever. It is not disputed that the decree has been transferred for execution from the Bombay High Court to the Court at Jhansi. This was presumably under Section 39, Civil P.C. An order passed by the Subordinate Judge in execution is not an order passed by a Court of Small Causes from which no appeal lies. A first appeal from his order clearly lay to the District Judge: vide the case of Atwari V/s. Maiku (1909) 31 All 1. Of course the decree having been passed by a Presidency Court of Small Causes in a case of Small Cause Court nature no second appeal lies even in the execution proceedings.

(3.) The next point urged is that the learned Judge has acted upon evidence which was neither formally proved nor admissible in evidence. The objection of the respondent is that assuming that this contention is correct no civil revision lies. Ordinarily when a Court acts on evidence which has not been proved or which is inadmissible in evidence, it does not act without jurisdiction. Furthermore, if a Court considers the question of the admissibility of a document and decides either that it is admissible or not admissible then even though the decision may be wrong, the Court does not act with material irregularity or illegality. It merely commits an error of law. But on the other hand if the Court does not apply its mind to the question of the admissibility at all and acts on a document which has not been proved or which is not admissible without considering whether or not it is admissible it acts with material irregularity or illegality in exercising its jurisdiction. In the case of Shields V/s. Wilkinson (1887) 9 All 398 it was laid down that to pass a decree where there was no evidence at all to support it was an illegality. I may also refer to the case of Chenbasapa V/s. Lakshman Ramchandra (1894) 18 Bom 369.