RAM SAHAI Vs. MADAN LAL KANHAIYA LAL

JUDGEMENT

(1.) We have come to the conclusion that this case must go back. We make it quite clear that we are interfering under Section 115 of the Civil Procedure Code on the ground that the learned Judge has not exercised the jurisdiction vested in him in hearing this application on the merits, but we desire to point out that so far as the application of Section 115 to this case is concerned, the members of the Court do not take precisely the same view, and the decision which we have arrived at is based on the peculiar circumstances of this case and cannot be regarded as a guide in any other.

(2.) The facts are simple. The present applicant before us, on the 15 December 1924, applied to the execution Court in a suit to which he was not a party alleging that having experienced great difficulty in recovering from one Kanhaiya Lal a sum due to him of Rs. 9,400 odd he had taken from the said Kanhaiya Lal a mortgage or security bond on the 15 November 1924, which bond hypothecated a decree which Kanhaiya Lal had obtained in Suit No. 251 of 1923, and he sought by his application after due notice issued to the parties concerned, to be brought upon the array of decree-holders," to use his exact language and to enforce against the judgment-debtor the right which he, the applicant, had under his mortgage through Kanhaiya Lal, the decree-holder. The learned Judge rejected this application on the ground that Order 21, Rule 16 did not apply. That question has resulted in a very interesting discussion of law before us. The respondent, in support of the order of the Court below, referred us to various other matters which according to his view affected the application in such a way as to show that it ought to fail. Unfortunately these matters are not clearly before us on the record. It would be obviously wrong for us to anticipate any decision upon the merits with an inadequate supply of the relevant material. If he is right, the learned Judge will no doubt give effect to this view when he considers the matter on the merits. One point suggested is that there is nothing against which the decree can now be enforced by the applicant and that there is some previous order binding upon the applicant. If that were so, the learned Judge will, in dealing with the merits, no doubt apply the well established principle that previous decisions in the same matter are binding upon the parties. All we can say is that we are prohibited from expressing any opinion one way or another upon these questions from the lack of the necessary materials, and when the Judge finally decides this case upon the merits, all such questions can be raised in any appeal which the law allows to be brought from his decision. It the objector had a complete answer upon the merits, it was superfluous for him to raise a preliminary objection to the hearing, although we know that is an unfortunate practice frequently adopted in the lower Courts. The learned Judge might have dealt with the matter upon the merits and if he were satisfied that there was nothing upon which the applicant, on the present application, could succeed, he could have dismissed the application on the merits, and said, if he entertained doubts, that he entertained doubt as to whether he ought to have listened to it at all. He did not however do that. He denied the right of the applicant to be heard on the merits. On that point we disagree with him and therefore on the merits it must go back, it being clearly understood that nothing that we say, or decide in this matter, can affect the merits in any way when they are inquired into in the lower Court.

(3.) In arriving at a decision rejecting the application the learned Judge based himself upon a reported decision of this High Court, namely, Mazhar Husain V/s. Mt. Amtul Bibi AIR 1922 All 101. The case is a recent one having been decided in 1922. As a matter of fact, according to the provisions of Section 3 of the Indian Law Reports Act of 1875, the learned Judge was not bound to look at the report at all. It is a great pity that the Courts below do not pay more attention to this provision which is in a large measure a dead letter. This case is a good illustration of the danger of accepting reports of the cases so reported. Unfortunately there is great deal of interior reporting in India. Some of the private reports do not receive any editing at all, or little editing worthy of the name, and the legal implication arising from the cases which they report are not considered. A judgment is seized upon from the record like a sort of treasure trove and reproduced in a kind of glass case in the weekly issue of the report in question. In the particular case by which the learned Judge was guided, the judgment of the High Court takes the trouble to say that the facts of the case are clearly stated in the order of the Court below. In spite of this hint to those who might desire in future to consult the judgment, the report contains no reference or quotation, either from the order of the Court below, or from the judgment to which the High Court referred. We do not doubt that a decision of this Court unreported may be cited to a lower Court if the record is in the lower Court, or is brought to the lower Court, to enable the lower Court to advise itself by what had been done in a previous unreported case by the High Court, but that is not the same thing as the production of an emasculated report in a private issue, because in such a case the lower court has the advantage of ascertaining for itself what the facts really were. We find, on looking at the original record of the case reported in Indian Cases that, as a matter of fact the applicant in that case was the holder of a decree which he had obtained upon his assignment or mortgage, and that therefore the original assignment under which he claimed to apply under Order 21 Rule 16 had become merged in a decree There is nothing in the judgment of the High Court to show that particular aspect of the matter influenced their judgment. On the other hand there is nothing to show that it did not A careful study of this decided case by the learned Judge in the Court below which of course he had no opportunity of making, would have shown that it dealt with an entirely different set of circumstances from the case with which he was dealing and that it did not apply. The result is that he has either denied himself jurisdiction in rejecting the application by following an authority which had no application, or he has irregularly exercised his jurisdiction so as to defeat the claim, if there is one, of the applicant, by applying a decided case which had no application. It would be a great misfortune if the High Court in a simple matter of a miscarriage of recognized legal procedure, should be unable to interfere, and we are agreed that whichever branch of the Section 115 is looked at, the section applies to this case.