PETITIONER:
MOHD. YUNUS
Vs.
RESPONDENT:
MOHD. MUSTAQIM & ORS.
DATE OF JUDGMENT04/10/1983
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
VENKATARAMIAH, E.S. (J)
CITATION:
1984 AIR 38 1984 SCR (1) 211
1983 SCC (4) 566 1983 SCALE (2)1013
ACT:
Constitution of India 1950: Petition under O.XXI r.92
dismissed-Petitioner, if could file a petition under Art.
227 of the Constitution.
Code of Civil Procedure: Petition under O.XXI, r.92
dismissed-Appeal not preferred-If could move High Court
under Article 227.
HEADNOTE:
On the failure of the judgment-debtor to satisfy the
decree passed against him the property in dispute was sold
in execution of the decree. The surety made an application
under section 151 Code of Civil Procedure, without
mentioning the order under which the application was made.
The Subordinate Judge treated the application as one under
order XXI, r.89. The surety in that application prayed for
time to deposit the amount but failed to make the deposit.
In the meantime, he died. A total stranger to his estate
purporting to be his grand-nephew made an application for
substitution claiming that he was the surety's successor-in-
interest and that before his death the surety had executed a
will in his favour. On the same day the decree-holder made
an application stating that the surety had made payment of
the decretal amount before the sale was held and prayed that
full satisfaction of the decree be recorded. The respondent
who was the auction-purchaser, contested the genuineness of
the will and stated that the alleged adjustment could not in
any event affect his right or title to the property in
dispute as auction-purchaser. The Subordinate Judge refused
substitution of the petitioner. Some time later, the
petitioner moved another application under section 151 of
the Code of Civil Procedure, for setting aside the sale on
the ground of material irregularity in conducting the sale
but that application was rejected by the Subordinate Judge.
The petitioner thereupon moved the High Court under
Art. 227 of the Constitution contending that fraud was
perpetrated by the decree-holder in bringing the property in
dispute to sale although there was full satisfaction of the
decree by the surety before his death. The High Court
declined to interfere with the impugned orders of the
Subordinate Judge on various grounds.
On the question whether it was proper for the
petitioner to have moved a petition under Art. 227 of the
Constitution.
Dismissing the petition
212
HELD: The petition under Art. 227 was wholly
misconceived. The supervisory jurisdiction conferred on the
High Courts under Art. 227 of the Constitution is limited
"to seeing that an inferior Court or Tribunal functions
within the limits of its authority", and not to correct an
error apparent on the face of the record, much less an error
of law. In the instant case, there was no error of law or
error apparent on the face of record. From an order under
O.XXI, r.92 an appeal lay to the District Judge. That apart
the petitioner's application raised a question relating to
execution which fell within the purview of section 47 Code
of Civil Procedure which prior to February 1, 1977 was
appealable because then a decision under section 47 was
deemed to be a decree under section 2(2) of the Code.
Therefore, the petitioner had the remedy of appeal to the
District Judge: Even if no appeal lay against the impugned
orders of the Subordinate Judge, the petitioner had the
remedy of filing a revision before the High Court under
section 115 of the Code. Upon any view of the matter the
High Court under Art. 227 of the Constitution had no
jurisdiction to interfere with the impugned orders passed by
the Subordinate Judge. A mere wrong decision without
anything more is not enough to attract the jurisdiction of
the High Court under Article 227.[215 E: 216B-C; 215F-H;216
A]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Special Leave Petition
No.9148 of 1980.
From the Judgment and Order dated the 3rd September,
1980 of the High Court of Delhi in C.M. (N). No. 49 of 1974.
Prithvi Raj and Chaman Lal Itorora for the Petitioner.
I.D. Garg and K.B. Rohtagi for the Respondents.
The Judgment of the Court was delivered by
SEN,J: This special leave petition directed against the
judgment and order of the Delhi High Court dated September
3, 1980 must fail as the decision of the High Court on
merits is unassailable. But in view of the growing tendency
of litigants of by-passing the normal remedy of an appeal or
revision by moving the High Court with petitions under Art.
227 of the Constitution, we deem it necessary to give the
reasons therefor.
It appears that the property belonging to the surety
Mohd. Salam comprised of a house situate at Katra Sheikh
Chand, Lal Kuan, Delhi was sold by the Subordinate Judge,
Delhi in execution of an ex parte decree in favour of Mohd.
Mustaqim due to the failure of the judgment-debtor Hakim
Mazhar-ud-Din to satisfy the decree on May 24, 1972. On June
9, 1972 the surety made an
213
application under s. 151 of the Code of Civil Procedure,
1908 without specifying whether it was under O.XXI,r. 90
The learned Subordinate Judge by his order dated June 10,
1972 treated the application to be under O.XXI, r. 89 and
the surety opted to elect it as such and prayed for time to
deposit the solatium equal to 5% of the purchase money for
payment to the auction-purchaser Chuni Lal, but failed to
make such deposit the till death on July 22, 1972. At no
stage of the proceedings did the surety assert that the
decree had been satisfied out of Court, nor did he make an
application under O.XXI, r. 2 for certification of
adjustment. He died leaving behind him a son named Mohd.
Karim and a daughter named Mst. Rabia Khatoon, both of whom
were apparently settled in Pakistan, After his death, on
August 11, 1972, the petitioner who is a total stranger to
the estate of the deceased-surety, made an application
stating that his name be substituted as he was the
grandnephew of the surety and also his heir and successor-
in-interest under an alleged will executed by the surety on
July 20, 1972 i.e. two days before his death. On the same
day, there was an application moved by the decree-holder
stating that the surety had already made payment of the
decretal amount and costs to him before the sale was held on
May 24, 1972 and that full satisfaction of the decree may be
recorded. The respondent, who is the auction-purchaser,
contested the claim of the petitioner and pleaded inter alia
that the genuineness of the alleged will is open to question
apart from its validity as it was affected by the doctrine
of marz-ul maut and that, in any event, the alleged
adjustment could not affect his right or title to the
property in dispute as an auction-purchaser.
The learned Subordinate Judge by his order dated
November 23, 1972 held that there was no question of
allowing the substitution of the name of the petitioner by
the Court under its inherent powers. On December 15, 1972
the petitioner moved another application under s.151 of the
Code for setting aside the sale on the ground that there was
material irregularity in publishing and conducting the same
and also to record satisfaction of the decree and set aside
the sale. That application of his was disallowed by the
learned Subordinate Judge by his order dated November 9,
1973 on the ground that his earlier order dated November 23,
1972 holding that the application made by the surety
purporting to be under O.XXI, r.89 stood disposed of as he
did not comply with the requirements of r.89, operated as
res judicata, and no question of invocation of the inherent
powers of the Court arose and further that the
214
application made by the petitioner treated as an application
under O.XXI, r.89 was barred by limitation as it was filed
beyond the period of 30 days prescribed by Art.127 of the
First Schedule to the Limitation Act, 1963.
Dissatisfied with the impugned orders passed by the
learned Subordinate Judge, the petitioner moved the High
Court under Art. 227 of the Constitution. The contention
before the High Court was that there was fraud perpetrated
by the decree-holder in bringing the property in dispute to
sale although there was full satisfaction of the decree by
the surety before his death. The High Court instead of
dismissing in limine the petition under Art.227 of the
Constitution as not maintainable, declined to interfere with
the impugned orders of the learned Subordinate Judge because
it was satisfied that the application made by the petitioner
construed as an application made under O.XXI, r.89 to set
aside the sale was barred both by the principle of
constructive res judicata and also by limitation inasmuch as
it was governed by Art.127 of the First Schedule to the
Limitation Act, 1963,
We fail to see the propriety of the petition moved by
the petitioner in the High Court under Art.227 of the
Constitution. The rule is well-established that there can be
no certification of an adjustment between the decree-holder
and the judgment-debtor under O.XXI, r.2 after an auction-
sale is held in a case where a third party’s interest
intervenes. In such a case, the Court has no alternative but
to confirm the sale under O.XXI, r.92 of the Code. In
Nanhelal & Anr. v. Umrao Singh, the Judicial Committee of
the Privy Council in dealing with o.XXI, r.2 of the Code
held that an adjustment between the decree-holder and the
judgment-debtor come to at any time before the confirmation
of an execution sale cannot nullify the decree by taking
away the very foundation of the Court’s power to execute the
decree viz. the existence of a decree capable of execution.
In dealing with the question, the Privy Council observed:
“In the first place, 0.21, R.2, which provides for
certification of an adjustment come to out of Court,
clearly contemplates a stage in the execution
proceedings when the matter lies only between the
judgment-debtor
215
and the decree-holder, and when no other interests have
come into being. When once a sale has been effected, a
third party’s interest intervenes, and there is nothing
in this rule to suggest that it is to be disregarded.
The only means by which the judgment-debtor can get rid
of a sale, which has been duly carried out, are these
embodied in R.89, viz, by depositing in Court the
amount for the recovery of which the property was sold,
together with 5 per cent on the purchase money which
goes to the purchaser as statutory compensation, and
this remedy can only be pursued within 30 days of the
sale: see Art. 166, Sch.1, Lim. Act, 1908.”
The Privy Council further observed:
“That this is so is clear from tho wording of
R.92, which provides that in such a case (i.e. where
the sale has been duly carried out), if no application
is made under R.89, the Court shall make an order
confirming the sale and thereupon the sale shall become
absolute.”
The petition under Art.227 of the Constitution was
wholly misconceived. An appeal lay from an order under
O.XXI, r. 92 setting aside or refusing to set aside a sale,
under O.XLIII, r. 1 (j) to the District Judge. That apart,
the application made by the petitioner claiming to be the
legal representative of the surety, the judgment-debtor’s
representative, on the one hand and the auction-purchaser,
the decree-holder’s representative, on the other alleging
that there had been a fraud perpetrated by the decree-holder
in causing the sale to be held, with a prayer for recording
satisfaction of the decree under O,XXI,r.2, raised a
question relating to the execution, discharge or
satisfaction of the decree and therefore fell within the
purview of s. 47 which prior to February 1,1977 was
appealable because then a decision under s. 47 was deemed to
be a decree under s. 2(2) of the Code, and therefore the
petitioner had the remedy of an appeal to the District
Judge. Even if no appeal lay against the impugned orders of
the learned subordinate Judge, the petitioner had the remedy
of filing a revision before the High Court under s.115 of
the Code. Upon any view of the matter, the High Court had no
jurisdiction to interfere with the impugned orders passed by
the learned Subordinate Judge, under Art. 227 of the
Constitution. A mere wrong decision without anything
216
more is not enough to attract the jurisdiction of the High
Court under Art. 227.
The supervisory jurisdiction conferred on the High
Courts udder Art. 227 of the Constitution is limited “to
seeing that an inferior Court or Tribunal functions within
the limits of its authority”, and not to correct an error
apparent on the face of the record, much less an error of
law. In this case there was, in our opinion, no error of law
much less an error apparent on the face of the record. There
was no failure on the part of the learned Subordinate Judge
to exercise jurisdiction nor did he act in disregard of
principles of natural justice. Nor was the procedure adopted
by him not in consonance with the procedure established by
law. In exercising the supervisory power under Art.227, the
High Court does not act as an Appellate Court or Tribunal.
It will not review or re-weigh the evidence upon which the
determination of the inferior court or tribunal purports to
be based or to correct errors of law in the decision.
The special leave petition is accordingly dismissed.
P.B.R. Petition dismissed.
217