PETITIONER: PANDURANG DHONI CHOUGULE Vs. RESPONDENT: MARUTI HARI JADHAV DATE OF JUDGMENT: 26/04/1965 BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. SHAH, J.C. MUDHOLKAR, J.R. SIKRI, S.M. CITATION: 1966 AIR 153 1966 SCR (1) 102 CITATOR INFO : R 1966 SC 439 (4) R 1972 SC2379 (9) R 1973 SC 76 (5) RF 1978 SC1341 (12) ACT: Code of Civil Procedure, 1908 (5 of 1908), s. 115-Revisional Jurisdiction of High Court-Tests--Construction of document of law-When jurisdiction can be exercised. HEADNOTE: In a suit for redemption of a mortgage filed by the respondents' predecessors on a_ mortgage executed by them in favour of the appellants' predecessors, a decree was passed directing the respondents' predecessors -to pay a certain sum within a specified time to the appellant's predecessors and recover possession of the mortgage property and in case of failure to pay within the specific time they shall be deemed to have lost the right of redemption for all time. According to the respondents the money was not paid; even so, the relationship between the parties continued to be that of the mortgagors and mortgagees. So the respondents filed an application-under the Bombay Agriculturists Debtors Relief Act for justice of the debt., The appellants also filed an application for adjustment of the debt due under the decree; but in doing so, they made it clear that they were making the application as a matter of precaution and without prejudice to their contentions that the equity of redemption had been extinguished and the parties no longer stood in the relationship of creditors and debtors. The trial court rejected the appellants' contention that the mortgage had been extinguished and held that the equity of redemption still vested in the respondents; but as the respondents' application was barred by time, it dismissed the respondents' application. On appeal, the District Court held, inter alia, that the decree was a composite decree and on the respondents' failure to pay the decrement amount within the time specified, their right lo redeem the mortgage was extinguished by virtue of the express terms contained in it, and dismissed the respondents' appeal. On revision under s. 115 of the Code of Civil Procedure, the High Court construed the decree as a preliminary decree and found that the clause purporting to extinguish the equity of redemption did not effect its essential character as a preliminary decree and did not in law out an end to the relationship of creditor and debtor between the parties. In appeal to this Court, the appellants contended that in reversing the conclusion of the District Court, the High Court exceeded its jurisdiction under s. 115 of the Code. HELD : This contention was well founded and must be upheld. [106H] While exercising its jurisdiction under s. 115 it is nut competent to the High Court to correct errors of fact however, gross they may be, or even errors of law, unless the said errors have relation to the jurisdiction of the court to try the dispute itself. The tests laid down in Clauses (a) (b) and (c) of s.. 115, before the High Court exercises its revisional jurisdiction, are, does the alleged misconstruction of the statutory provision have relation to the erroneous assumption of the jurisdiction; or the erroneous failure to exercise jurisdiction; or the exercise of jurisdiction illegally or with material irregularity by the subordinate; court. It is well-settled that a plea of limitation or plan of 103. res judicata is a plea of law which concerns the jurisdiction of the court which tries the proceedings. A distinction must be drawn between errors committed by subordinate courts in deciding questions of law which have relation to, or are concerned with, questions of jurisdiction of the said court, and error of law which have no such relation or connection. It is undesirable and inexpedient to lay down general rule in regard to this position. [107 A-E; 108 D-E] Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee and Others, A.I.R. 1964 S.C. 1336 and Vora Abbasbhai Alinahomed V. Haji Gulamnabi Haji Safibhai, A.I.R. 1964 S.C. 1341. The construction of a document of title is no doubt a point of law. Even so, it cannot be held to justify the exercise of the High Courts' revisional jurisdiction under s. 115 of the Code because it has no relation to the jurisdiction of the Court. Like other matters which are relevant and material in determining the question of the adjustment of debts, the question about the existence of the debt has been left to the determination of the courts which are authorised to administer the provisions of the Act; and even in dealing with such questions, the trial court or District. Court commits an error of law, it cannot be said that, such an error of law would necessarily involve the question of the said court'-, jurisdiction within the meaning of s. 115 of the Code. [108H-109C] OBITER : When Legislature pass Acts dealing with socio- economic matters, or make provisions for the levy of sales- tax, it is realised that the operative provisions of such legislation present difficult problems of construction; and as sometimes, the Act in question provides for a revisional application to the High Court or authorises a reference to be made to it. In such cases, the High Court will undoubtedly deal with the problems raised by the construction of the relevant provisions in accordance with the extent of the jurisdiction conferred on it by the material provisions contained in the statute itself. Sometimes, however, no such specific provision is made, and the question raised in regard to the construction, of the provisions of such a statute reach the High Court under its general revisional jurisdiction under s. 115 of the Code. In this class of cases, the revisional jurisdiction of the High Court has to be exercised in accordance with the limits prescribed by the said section. [107 E-H] JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 163 of 1963.
Appeal by special leave from the judgment and decree dated
October 31, 1960 of the Bombay High Court in Civil Revision
Application No. 2131 of 1957.
S. P. Sinha and M. I. Khowja, for the appellants.
C. B. Agarwala and A. G. Patraparkhi, for the respondents.
The Judgment of the Court was delivered by :
Gajendragadkar, C.J. This appeal by special leave arises out
of proceedings initiated under the provisions of the Bombay
Agricultural Debtors Relief Act, 1939 (No. 28 of 1939)
(hereinafter called ‘the Act’). The respondents Maruti Hari
Jadhav and two
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others moved the B.A.D.R. Court at Karad on May 26,
1949, for adjustment of the debt alleged to
be due from them to the appellants, Pandurang.
Dhondi Chougule & others. Their case was that the debt in
question was due under a mortgage deed executed by their
gand-father in favour of the grand-father of the appellants
on August 29, 1881. By this mortgage, six agricultural
lands situated atKapil in the former State of Oundh had
been mortgaged to the portage with possession
for a sum of Rs. 575. In 1908, the respondents
predecessoes-in-interest sued on this mortgage in the Court
of the Sub-Judge at Kapil (Civil Suit No. 28 of 1908-09).
This suit was, however, withdrawn with liberty to file a
fresh suit. Then followed another suit by the respondents
in the same Court for redemption of the mortage (No. 102 of
1932-33). On September 2, 1936, a decree came to be passed
in the said suit. According to the respondents, the decree
directed them to pay Rs. 3,677-12-6 within six months from
the date on which it was drawn but the said money had not
been paid; even so, the relationship between the parties
continued to be that of ‘the mortgagors and the mortgagees,
and so, they were entitled to claim adjustment of the debt
in question. The respondents also pleaded that the decree
which was passed in the said suit was in the nature of a
preliminary decree, and though the appellants were entitled
to apply for making the said decree final after the
expiration of the six months’ period prescribed by it, they
took no such action and the mortgage debt, therefore,
remains unpaid arid the equity of redemption vesting in the
respondents is unextinguished. That, in brief, is the
nature of the claim made by the Respondents in the
application made by them under the Act for adjustment of
their debt due to the appellants.
It appears that the State of Oundh merged in the erstwhile
State of Bombay and thereafter the Act was extended to the
said State. That is how the respondents commenced the
present proceedings under the provisions of the Act thus
extender to the State of Oundh.
The appellants also made an application for the adjustment
of the debt due under the decree in Suit No. 102/1932-33 in
the Court of Joint Civil Judge Karad; but in doing so,, they
made it perfectly clear that they were making the
application is a matter (-f precaution and without prejudice
to their contention that the equity of redemption had been
extinguished and the parties no longer stood in the
relationship of creditors and debtors. In fact, it was the
appellants the first made the application on May 19, 1949,
and the respondents followed by their application on May
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26, 1949. For the purpose of hearing these two applications
were consolidated by the trial Court.
At the hearing of these proceedings the appellants raised
several contentions. They urged that the mortgage was
extinguished and the respondents were therefore, not
entitled to claim adjustment of the debt, and they also
contended that the application made by the respondents was
barred by time. The trial Judge rejected the appellants’
argument that the mortgage had been extinguished, and held
that the equity of redemption still vested in the
respondents. He, however, found ‘that the respondents’
application for adjustment of the debt was barred by time.In
the result, the respondents failed and their application was
dismissed.
The matter then went in appeal to the District Court, North
Satara. The appellate Court held that the decree in suit
No. 102 of 1932-33 amounted to a final decree which
absolutely debarred the right of the mortgaging to redeem
the property in view of the fact that had failed to pay the
decretal amount within the time prescribed by it. It also
agreed with the view taken by the trial Court that the
respondents application was barrey by limitation. In the
result, the appeal preferred by the respondents was
dismissed.
The dispute the reached the Bombay High Court in its
revisional jurisdiction under s. 115 of the Code. Before
the High Court it was urged that the Code of Civil Procedure
did not apply to the State of Oundh at the relevant time;
that is why by an interlocutory judgment, the High Court
remanded the proceedings to the trial Court with a direction
that the issue as to whether the Code of Civil Proceedure
applied to the State of Oundh at the relevant time, should
be tried. On remand, the trial Court made a finding that
the Code of Civil Procedure had been made applicable to the
State of Oundh as far back as 1909-10. The High Court had
also directed that the issue as to who was, in possession of
the property at the relevant time, should be tried; and the
finding returned by the trial Court was that the appellants
were in possession of the mortgaged property not as
mortgaeges, but as owners from 2nd March, 1937.
After these findings were returned, the revision application
was argued before the High Court; and the main point which
was urged before the High Court at that state was whether
the respondents’ right to redeem the mortgage had been
extinguished by the decree passed in civil suit No. 102 of
1932-33. The High
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Court has differed from the District Court and has taken the
view that the decree did not determine the respondents’
right to redeem the mortgage. In regard to the finding
recorded by the courts below that the respondents’
application was barred by time, the High Court took the view
that the question as to whether the application is within
sixty years from the expiry of the period prescribed in the
mortgae deed for repayment is entirely irrelevant inasmuch
as the said application is substantially for the adjustment
of debt under the decree passed in suit No. 102 of 1932-33.
On that view of the matter, the High Court has set aside the
orders passed by the courts below and has remanded the
proceedings to the trial Court with a direction that the
application made by the respondents for adjustment of the
debt should be tried in accordance with law. It is against
this order that the appellants have come to this Court by
special leave.
Before proceeding to deal with the contentions raised before
us in the present appeal, it would be convenient to set out
the relevant portion of the decree in suit No. 102 of 1932-
33. The operative part of the decree reads thus :-
“The plaintiffs should pay to defendants I and
2 Rs. 3,677-12-6 within six months from today
and should recover possession of the suit
property as the heirs of Gopala free from the
mortgage. In case the plaintiff,,, do not pay
the amount within the prescribed time, the
plaintiffs shall be deemed to have lost the
right of redemption for all time”.
The District Court has held that this decree is a composite
decree and on the failure of the respondents to pay the
decretal amount within the time specified. their right to
redeem the mortgage is extinguished by virtue of the express
terms contained in it. The High Court has construed the
decree as a preliminary decree has found that the clause
purporting to extinguish the equity of redemption does not
affect its essential character as a preliminary decree and
does not in law put an end to the relationship of creditors
and debtors between the parties.
The first question which falls for our decision in the
present appeal is whether the High Court was justified in
interfering with the decision of the District Court that the
decree in question extinguished the respondents’ right to
redeem the mortgage. Mr. Sinha for the appellants contends
that in reversing the conclusion of the District Court, the
High Court ha-, exceeded its jurisdiction under S. 115 of
the Code. In our opinion’. this contention is well-founded
and must be upheld.
107
The provisions of s. 115 of the Code have been examined by
judicial decisions on several occasions. While exercising
its jurisdiction under s. 115, it is not competent to the
High Court to correct errors of fact however gross they may,
or even errors of law, unless the said errors have relation
to the jurisdiction of the Court to try the dispute itself.
As clauses (a), (b) and (c) of s. 115 indicate, it is only
in cases where the subordinate Court has exercised a
jurisdiction not vested in it by law, or has failed to
exercise a jurisdiction so vested, or has acted in the
exercise of its jurisdiction illegally or with material
irregularity that the revisional jurisdiction of the High
Court can be properly invoked. It is conceivable that
points of law may arise in proceedings instituted before
subordinate courts which are related to questions of
jurisdiction. It is well-settled that a plea of limitation
or a plea of yes judicata is a plea of law which concerns
the Jurisdiction of the court which tries the proceedings.
A finding on these pleas in favour of the party raising them
would oust the jurisdiction of the court, and so, an
erroneous decision on these pleas can be said to be
concerned with questions of jurisdicdon which fall within
the purview of s. 115 of the Code. But an erroneous
decision on a question of law reached by the subordinate
court which has no relation to questions of jurisdiction of
that court, cannot be corrected by the High Court under 115.
The history of recent legislation in India shows that when
Legislatures pass Acts dealing with socioeconomic matters,
or make pro-visions for the levy of sales-tax, it is
realized that the operative provisions of such legislation
present difficult problems of construction; and so,
sometimes, the Act in question provides for a revisional
application to the High Court in respect of such matters or
authorises a reference to be made to it. In such cases, the
High Court will undoubtedly deal with the problems raised by
the construction of the relevant provisions in accordance
with the extent of the jurisdiction conferred on it by the
material provisions contained in the statute itself.
Sometimes, however, no such specific provision is made, and
the questions raised in regard to the construction of the
provisions of such a statute reach the High Court under its
general revisional jurisdiction under s. 115 of the Code.
In this class of cases, the revisional jurisdiction of the
High Court has to be exercised in accordance with the limits
prescribed by the said section. It is true that in order to
afford guidance to subordinate courts and to avoid confusion
in the administration of the specific law in question,
important questions relating to the construction of the
operative provisions contained,
5Sup./65-8
108
in such an Act must be finally determined by the High Court;
but in doing so, the High Court must enquire whether a
complaint made against the decision of the subordinate court
on the ground that it has misconstrued the relevant
provisions of the statute, attracts the provisions of s.
115. Does the alleged misconstruction ,of the statutory
provision have relation to the erroneous assumption of
jurisdiction, or the erroneous failure to exercise jurisdic-
tion, or the exercise of jurisdiction illegally or with
material irregularity by the subordinate court ? These are
the tests laid down by s. 115 of the Code and they have to
be borne in mind before the High Court decides to exercise
its revisional jurisdiction under it.
This question has been recently considered by this Court in
Manindra Land and Building Corporation Ltd., v. Bhutnath
Banerjee and Others(1); and Vora Abbasbhai Alimahomed v.
Haji Gulamnabi Haji Safibhai(2). The effect of these two
decisions clearly is that a distinction must be drawn
between the errors committed by subordinate courts in
deciding questions of law which have relation to, or are
concerned with, questions of jurisdiction of the said court,
and errors of law which have no such relation or connection.
It is, we think, undesirable and inexpedient to lay down any
general rule in regard to this position. An attempt to
define this position with precision or to deal with it
exhaustively may create unnecessary difficulties. It is
clear that in actual practice, it would not be difficult to
distinguish between cases where errors of law affect, or
have relation to, the jurisdiction of the court concerned,
and where they do not have such a relation.
Considering the point raised by Mr. Sinha in the light of
this position, it seems to us that the High Court was in
error in assuming jurisdiction to correct what it thought to
be the misconstruction of the decree passed in civil suit
No. 102 of 1932-33. As we have already seen, in the present
debt adjustment proceedings, one of the points which arose
for decision was whether the mortgage debt was subsisting at
the time when the respondents made their application, and
the District Court had found that the respondents’ equity of
redemption had been extinguished. This finding was based on
the construction of the said decree. It is difficult to see
how the High Court was justified in reversing this finding
under s. 115 of the Code. The construction of a decree like
the construction of a document of title is no doubt a point
of law. Even so, it cannot be held to justify the exercise
of the
(1) A-I.R. 1964 S.C. 1336.
(2) A.I.R. 1964 S.C. 1341.
109
High Court’s revisional jurisdiction under s. 115 of the
Code because it has no relation to the jurisdiction of the
Court. Like other matters which are relevant and material
in determining the question of the adjustment of debts, the
question about the existence of the debt has been left to
the determination of the court.-, which are authorised to
administer the provisions of the Act; and even if in dealing
with such questions, the trial court or the District Court
commits an error of law, it cannot be said that such an
error of law would necessarily involve the question of the
said courts’ jurisdiction within the meaning of s. 115 of
the Code. We are, therefore, satisfied that on the facts of
this case, the High Court exceeded its jurisdiction in
interfering with the conclusion of the District Court that
the decree in question had extinguished the respondents’
equity of redemption.
This conclusion is enough to dispose of the present appeal,
because the main ground on which the High Court has reversed
the concurrent decision of the courts below dismissing the
respondents’ application for adjustment of the debt, is
furnished by its finding that the decree in question did not
extinguish the equity of redemption vesting in the
:,respondents. In fact, it was as a result of this decision
that the High Court reversed the finding of the courts below
that the respondents’ application was barred by time.
Having regard to the fact that we are inclined to take the
view that the High Court exceeded its jurisdiction in
reversing the finding of the District Court as to the effect
of the decree in question, we do not think it is necessary
to consider the further question as to whether the High
Court was right in holding that the decree in question was a
preliminary decree and the clause which purported to
extinguish the equity of redemption was inoperative and
invalid and as much, it did not affect the essential
character of the decree as a preliminary decree.
The result, is, the appeal is allowed, the order passed by
the High Court is set aside and that of the District Court
restored. There would be no order as to costs.
Appeal allowed.
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