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Allahabad High Court
Ram Sahai vs Madan Lal Kanhaiya Lal And Ors. on 16 March, 1926
Equivalent citations: AIR 1926 All 346
Author: Walsh


Walsh, J.

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 15th 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 15th 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. 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.

4. The decision in Mazhar Husain v. Mt. Amtul Bibi AIR 1922 All 101, to which I have referred, undoubtedly contains dicta which go far beyond the particular matter disposed of, and which raise very serious questions of practice under this rule, and, although I recognize that what I am going to say is mere obiter, none the less it seems to me difficult to regard this case as an authority, mainly for the reasons that, firstly, the case was clearly not argued very seriously before this High Court; secondly, because there are expressions in the rule to which I will refer in a moment which seem to me to raise serious doubts as to the correctness of the dicta; and, thirdly, because the decision is a recent decision contrary to the current of decisions in the Calcutta High Court and in the Madras High Court, which are the only High Courts, so far as we know, in which this matter has been considered, except that the Chief Justice of the Punjab in another case has cited these authorities without expressing any doubt as to their soundness and these cases were not cited before the Allahabad High Court.

5. Order 21, Rule 16 provides as follows:

Whether a decree is transferred by assignment in writing or by operation of law, the transferee may apply for execution of the decree to the Court which passed it and the decree may be executed in the same manner and subject to the same conditions as if the application were made by such decree-holder.

6. I have intentionally omitted the alternative which occurs at the commencement of this rule. An argument was addressed to us contending that what was meant by the rule was the whole interest of the decree-holder, and the words “the interest of any decree-holder” were relied upon. Those words have no application to the case before us. The phrase in which the term ”the interest of any decree-holder” occurs is an alternative to a decree. The rule therefore running “where a decree or if a decree has been passed jointly in favour of two or more persons, the interest of any decree-holder” clearly showing that the rule contemplates at any rate in the case of a joint decree, the transfer, by assignment or by operation of law, of the interest of any of the joint decree-holders, not covering therefore the whole interest in the decision.

7. Regarded by itself independently of any authority, it seems to me that this provision is quite clear and the first duty of a Court is to interpret the words as it finds them, unless, in a case of doubt or difficulty, it desires to seek guidance from previous interpretations. I am unable to understand how it can be suggested that the transfer by a mortgage or hypothecation bond of a decree is not a transfer by assignment in writing. I can find nothing in the general law prohibiting me from putting that interpretation upon the language and nothing in the Code inconsistent with the right of a mortgagee of a decree to apply under this rule.

8. With regard to the argument based upon the contention that the rule applies only to the whole of an interest in a decree and not to a fractional part, I can only say that if that were the true view, it seems to me impossible to give effect to the words “operation of law.” The transfer contemplated is not merely by an assignment of writing, but by operation of law also. These words are invariably used with reference to insolvency, or death, when by operation of law the whole interest, or the part interest in a decree, vests in the official Receiver in insolvency, or in a legal representative by reason of death, and if the contrary view were correct the result would be, for example, that if a Muhammadan died intestate leaving a widow and children, all of whom by operation of law became entitled to a fractional interest in any decrees which he held, and it might happen that the only estate he had were unenforced decrees, they would be unable to enforce their rights against the judgment-debtors under this rule. That seems to me an embarrassing result and one calculated, to defeat the rights of so many persons that I cannot contemplate the possibility of such a result having been intended. I asked the learned advocate supporting this order:

Assuming that a mortgagee or a transferee either by assignment or by operation of law had a right to have his application considered by the Court, under what rule he could apply if it was not under this Order 21, Rule 16.

9. And to that question I received no answer and I am satisfied that no answer can be given.

10. I, therefore, take the view that it is wrong to say that this rule does not apply to an assignment by mortgage or to any transfer which has the effect of conferring upon the transferee or assignee a merely fractional interest in a decree and I am confirmed in this view by the fact, as I have already stated, that in Calcutta and Madras this question has been settled for nearly thirty years. I merely refer to Kishore Chand Bhakat v. Gisborne & Co. (1890) 17 Cal 341 and Venkataramaniah v. Venkatachainulu (1910) 33 Mad 80. These cases, I think, rightly draw attention to the fact that there is no prohibition in the Code to which reference can be made for making such an application as this, one which has no legal foundation, and in both cases the Judges were careful to point out that it was for the execution Court below to consider with all parties before it the respective rights of each. These are the two cases to which the Chief Justice of the Punjab referred in Mokham Chand v. Ganga Ram AIR 1919 Lah 429 without suggesting, although he was deciding against the applicant, that there was any doubt as to the soundness of the decisions.

11. The case that has troubled us perhaps more than anything else in the able arguments addressed to us is the decision of a Full Bench in Yad Ram v. Sunder Singh AIR 1923 All 392 to which I happen to have been a party, although I dissented from the decision because I was satisfied that the law had been wrongly applied and that there had been a miscarriage of justice, but I desire faithfully to follow that decision which took the view that where on the subject-matter there is a current of authorities one way in other High Courts and a current of authorities the other way in the High Court to which he is subordinate, a Subordinate Judge cannot be said to have gone outside his jurisdiction, or to have exercised it irregularly, in following the decision of his own High Court by which he is undoubtedly bound when they are in pari materia. Mr. Justice Piggot and myself pointed out that if the Subordinate Judge had a doubt about the decision of his own High Court, having regard to other decisions, or other views by which he was equally impressed, he might resort to a well-known provision of the Code, Order 46, Rule 1, and refer the matter to the decision of the High Court. When so referred, it is open to this High Court, if it considers that the decision otherwise binding upon the subordinate Courts requires reconsideration, to refer the matter to a Full Bench; and I pointed out in my judgment that a Subordinate Judge need not be too timorous about stating it if he really entertains doubt, and states it for the purpose of having it removed, not merely for the case in question, but for the benefit of litigants in general and the guidance of the lower Courts.

12. We do not think that the case before us is on all fours with that Pull Bench decision so as to prohibit us from remitting this matter to the lower Court. We think this is clearly a case in which it is our duty to remit it to the lower Court to be dealt with on the merits. I have already pointed out that what I have said with regard to the interpretation of Order 21, Rule 16 is merely obiter. If the learned Judge should ultimately be of opinion that the applicant has a right upon the merits and he is prepared to enforce such right by an order, he should pass such order, but if he should still entertain doubts, having regard to the dicta to which we have referred in the report in Indian Cases and to the foregoing expression of opinion about the real interpretation of this real rule he should exercise the powers conferred upon him by the Code under Order 46, Rule 1, but we would implore him before he takes any step of that kind to deal with the position, the facts, and the merits and to come to a final decision upon the merits as though the matter were properly before him; and if he does this, whatever the view of law taken in any subsequent proceedings may be, the Court ultimately disposing of the matter will not be embarrassed, as we have been, in coming to a final decision.

Dalal, J.

13. I agree with the order of remand passed by my learned brother and shall state my reasons. The revisional jurisdiction of this Court has been confined within narrow limits by various Revisional Bench and Full Bench decisions and whatever one’s private opinion may be, those decisions have to be followed for the sake of consistency.

14. In the present case I shall only deal with the question whether a revision lies in the present case or not. The mortgagee of a decree applied for execution under Order 21, Rule 16 and the lower Court held that the applicant was not such an assignee as is contemplated under the terms of that rule and dismissed the application. If this opinion had been reached by the learned Subordinate Judge on reasons of his own, I would have held that no revision application lay to this Court. The appellant’s learned Counsel, Dr. Katju, argued that the lower Court had failed to exercise a jurisdiction vested in it because it had dismissed the application of the mortgagee and no revision would lie under Section 115(b) of the Civil Procedure Code. In my opinion such an argument is untenable. Jurisdiction in that case would depend only on the result; if an application is granted it may be argued that the lower Court exercised the jurisdiction not vested in it and if it is refused, it may be argued that it failed to exercise a jurisdiction which was vested in it. In both cases, in my opinion, the Court would have exercised jurisdiction and there would be neither illegality nor material irregularity even if the Court went wrong in applying any particular provision of law to the matter before it.

15. In the present case, however, the lower Court did not exercise its own judgment but felt itself bound by a ruling of this Court. If the ruling had been applicable I would have held that the present application could not be entertained by this Court. A subordinate Court is bound to follow a decision of a Bench of this Court; see Paltu Lal v. Parbati Kunwar AIR 1915 PC 15; and in doing so it would be exercising jurisdiction rightly and not irregularly: per Piggot, J., in Yad Ram v. Sunder Singh AIR 1923 All 392. The case quoted by the lower Court is reported in Mazhar Husain v. Mt. Amtul Bibi (1890) 17 Cal 341. The facts of that case were entirely different. The question there was whether a decree-holder who had obtained a decree for sale of another decree could be considered an assignee from the decree-holder of the second decree. The appellant in that case had obtained a decree for the sale of a decree mortgaged to him and instead of putting the second decree to sale he applied to be substituted in place of the decree holder. His proper remedy was to put the decree in favour of the judgment-debtor to sale, and only in the case of his purchasing that decree he would become an assignee of that decree. The mortgage in his favour had merged in the decree and he was no longer the mortgagee of the decree. The learned Judges held that up to the data of the delivery of that judgment the decree had not been transferred to anybody by assignment in writing. That was correct because the decree had not been put for sale in execution of the decree in favour of the appellant. Then occurs a cryptic sentence:

There is considerable distinction between the transfer of right as a decree-holder by mortgage and a transfer by assignment in writing or by operation of law of the decree itself.

16. This sentence has no relation whatsoever with the facts of the case before the learned Judges and I am of opinion that there has been a slip in dictating the judgment and the word “by” is really a slip for “under” or “on foot of.”

17. The learned Judges in my opinion desired to draw a distinction between the rights of a decree-holder on foot of or under a mortgage and the right of a transferee by a assignment in writing. Such a distinction does obviously exist, but that distinction is not one in favour of holding that a mortgagee of a decree is not an assignee thereof under Order 21, Rule 16.

18. The lower Court wrongly considered itself bound by a Bench ruling of this Court, which has no reference to the facts of the case before it, and in doing so failed to exercise its own judgment and by such failure failed to exercise a jurisdiction vested in it. This is the ground on which I agree in the order proposed.

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