BHAUSING RAGHO Vs. CHAGANIRAM HARCHAND

JUDGEMENT

(1.) I think it necessary to express my own emphatic opinion that an application of this kind is not within the scope or intention of Section 151 of the Civil Procedure Code. Nor does that section confer upon us jurisdiction to deal with errors of this kind. I think it is very clear that that section is intended to empower Courts to deal with their own decrees and orders and was not intended to give authority to superior Courts by way of conferring supplemental jurisdiction to that conferred by Section 115. But I think that this is a good case under Section 115. What has happened is very clear. The trial Court held that the present applicant was not an agriculturist on the ground that the question was res judicata. On appeal, the learned Judge hold that the question was not res judicata and remanded the case under Order XLI, Rule 23. Of that there can he no doubt whatever. Where that happens Section 13 of the Court- Fees Act makes it compulsory upon the Court to grant the certificate mentioned in that section. The Court has no discretion in the matter. The learned Judge of the lower appellate Court appears to have confused the matter before him in such a way as to have entirely lost sight of the imperative requirements of Section 13 of the Court-Fees Act. "Were it necessary to examine his reasoning, it would be, I think, very easy to show that he entirely missed the point and overlooked the obvious policy and intention of that section. It is, however, quite enough to say that as soon as he made his order of remand under Order XLI, Rule 23, he was bound by Section 13 of the Court-Fees Act to grant the certificate which the applicant now prays for. As he refused to do so, he clearly acted with illegality or with material irregularity, whichever word be preferred, and the relief which the applicant prays for must be granted, and the Court below must be directed to grant him the certificate which he asks for under Section 13 of the Court-Fees Act.

(2.) As the opponent, in spite of our opinion upon this point, given before he opened the argument, has elected to resist the application, in which, as far as I can see, he had no interest whatever, there is no reason why the application should not now be granted with costs against him, and I would so order. The Rule should be made absolute in the terms of the above judgment.

(3.) In respect of the remaining six applications of like nature (viz., Civil Extraordinary Applications Nos. 104 to 169 of 1917) Mr. Kane for the opponent withdraws all further opposition, and we think that, while they will all be governed by the judgment just delivered, the opponent need pay no more than his own costs in each of them. The order, therefore, at the foot of the judgment in each of those cases will be that the Rule is made absolute, each party here bearing his own costs. Heaton, J.