JAYARABAI Vs. BINDO GANESH

JUDGEMENT

(1.) This revision application raises a question of the revisional powers of this Court under Section 115, Civil P.C. The question is of importance. The limits of the revisional powers under this section have been defined in general terms in several ca3es which came before the Privy Council, more particularly, in 11 I.A. 237,1 27 I.A. 2162 and 44 I.A. 261,3 and while there is little difficulty in appreciating the general principle, the application of this general principle to particular cases is often a matter of considerable difficulty. There appears to be no reported case of any High Court dealing with facts similar to those in the present case. It is not necessary to give the facts in detail. Very shortly they are that a purchaser at court-sale applied to the executing Court under Order 21, Rule 91, Civil P.C., to set aside the sale on the ground that the judgment-debtor had no saleable interest in the property sold. The executing Court rejected the application, but in appeal, which was competent under Order 43, Rule 1, Clause (j) of the Code, the learned Assistant Judge at Belgaum held that in law there was no interest which the auction-purchaser could acquire by the sale, and that therefore the judgment-debtor had no saleable interest in the property, and, setting aside the order of the executing Court, he granted the application of the Court purchaser, and set aside the sale. The decree-holder now comes in revision claiming that the finding that the judgment-debtor had no saleable interest in the property sold is clearly wrong, and that this Court should interfere in revision on the basis that the learned Assistant Judge exercised a jurisdiction not vested in him by law. I have been referred to several decisions of this Court, none of which, as I have already indicated, are decisions under Order 21, Rule 91, and where in some eases this Court has exercised revisional jurisdiction sometimes after giving reasons and sometimes apparently without the question being raised, and also where in certain cases this Court has refused to exercise jurisdiction in revision. Of the latter cases perhaps the most important is that in 43 Bom. L.R. 480. where, when an application under Order 21, Rule 95, made by an auction- purchaser to get possession of the property of the judgment-debtor was rejected by the trial Court on the ground that it was barred by limitation; it was held that the finding of the trial Court on a question of limitation, whether right or wrong, was a finding on a point of law which the Court had jurisdiction to decide, and therefore it did not come within the ambit of Section 115, Civil P.C. It does not appear in any of the reported cases of this Court that an attempt has been made to define in more detail the principles laid down by the Privy Council in the cases to which I have referred, The latest Privy Council case, 44 I.A. 261,3 has been applied differently by other High Courts (see 14 Pat. 488,5 on the one hand, and 45 All. 425,6 on the other). Speaking for myself, I find it difficult to understand how a decision that a judgment-debtor has no saleable interest in property at the time of the court-auction or the allowing of an application by an auction-purchaser to set aside the sale involves a question of jurisdiction. The decision seems to me not more than a decision of law, or of mixed fact and law, and, although the consequence, setting aside the sale or rejection of the application for the setting aside of the sale, follows according to the conclusion at which the Court arrives, yet, this is similar to the fate of an application under Order 21, Rule 95, challenged as barred by limitation. Mr. Manerikar's argument is that the decision as to the existence of saleable interest goes to the very root of the competence of the application under Order 21, Rule 91, but I am inclined to think this argument is not really sound, and that this does not of itself make the matter one of jurisdiction. In view, however, of the somewhat unsettled state of the practice of this Court, and the absence of any authority directly in point, 1 think the matter should be considered by a Bench of this Court, and I refer therefore the following question: Whether a revision application can He from a decision in appeal on an application made under Order 21, Rule 91, Civil P.C., when the decision is that the judgment- debtor had no saleable interest in the properly sold, and the sale therefore has been set aside. Macklin, J.

(2.) The appellate Court has reversed the decision of an executing Court and has held that a certain auction-purchaser is entitled to have a sale set aside under Order 21, Rule 91, on the ground that the judgment-debtor had no saleable interest in the property. The other side now comes to us in revision, and apart from the merits of the case the question for us to determine is whether this Court has jurisdiction to interfere, since a preliminary objection has been taken that it has no jurisdiction. On behalf of the petitioners reference was made to the decision of the Privy Council in 44 I.A. 261.3 The case has been interpreted by the Patna High Court and by other High Courts, and the interpretation adopted has led to these High Courts holding that a Court of revision has power to interfere with a decision on a question which goes to the root of the jurisdiction of the Court. On the other hand, there are decisions not only of this Court but of other High Courts also which are to the effect that a decision will not be subject to the High Court's revision merely because it decides a question which involves jurisdiction. It will be subject to revision by the High Court only if it decides a question which itself is a direct question of jurisdiction.

(3.) 1 This matter came before <JGN>Weston</JGN> J., sitting alone; and though he had himself no doubts as to the powers of the High Court in a matter like this, holding in effect that this Court had no power to interfere, he thought it better to refer the matter to a Division Bench. There can be no doubt that an erroneous decision upon a direct question of jurisdiction gives rise to an application in revision. If, for example, the Court of a First Class Subordinate Judge considers the question of its own jurisdiction in a particular matter according to the construction of a statute as compared with the jurisdiction of, say, the District Court and wrongly comes to the conclusion that according to the true construction of the statute jurisdiction is with the one Court but not with the other and that decision is wrong and in the result it has wrongly exercised or not exercised jurisdiction, then its action is open to revision by the High, Court because it has decided what is a pure question of jurisdiction wrongly. Of that there can be no possible doubt, and no authority is needed for the proposition. But the question is whether this Court has power to interfere with a decision which affects jurisdiction but is not itself a decision as to jurisdiction. What happened in the case now before us is that the appellate Court held on a construction of the situation before it that the judgment debtor had no saleable interest in the property sold at a court-auction; and having held that, it did what it was bound to do under Rule 91 and set aside the sale. We are told that if its decision as to the judgment-debtor having no saleable interest in the property was wrong, then we are entitled to interfere in revision because that wrong decision resulted in the Court exercising a jurisdiction which it did not in fact possess to set aside the sale, since a sale under Rule 91 can be set aside only if the judgment-debtor has in fact no saleable interest in the property. In support of this contention we were referred to the decision of the Patna High Court in 4 Pat. L.J. 3407 This decision is typical of a class of decisions. It arose out of an order under Rule 89 of Order 21, and the application in revision was based upon an alleged error in deciding a question involving a construction of the rule and whether or no the person presenting the application fulfilled the character required by the rule. The High Court held that the Court's decision upon the point whether the applicant had the necessary legal character was clearly a question involving jurisdiction; and it said that, though an erroneous decision on a question of law or fact after jurisdiction has been once legally assumed would not be a ground for interference under Section 115 of the Code, still it would at once come within the purview of the section if the decision were the very basis and foundation of jurisdiction; and their Lordships went on to say that the judgment of the Privy Council in 44 I.A. 2613 was an authority in support of that view.