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Civil Procedure Code (Act V of 1908), ss. 47,115, 151-Execu- tion proceedings-Dismissal of adjournment petition-Dismissal of execution case also by same order without asking pleader what he has to say-Restoration of case under inherent powers-Appeal and revision petition to High Court from order of restoration-Maintainability of appeal-Interference by, High Court in revision-Legality-Revisional powers of High Court-Appeal from orders made under inherent powers. =A Subordinate Judge dismissed an application by a decree- holder for adjournment of an execution case and by the same order dismissed the execution case itself without informing the decree. holder’s pleader that the application for adjournment had been dismissed and asking him whether be had to make any submission in 137 the matter of the execution case, and an application for restoration of the execution case setting aside the order of dismissal, the Subordinate Judge, finding that he had committed an error which had resulted in denial of justice restored the execution case in the exercise of the inherent powers of the court under s. 151, Civil Procedure Code. The judgment-debtor preferred an appeal and an application, for revision to the High Court against this order. The High Court held that the appeal was not maintainable but set aside the order of the Subordinate Judge in the exercise of its revisional powers and remanded the case to the Subordinate Judge for fresh disposal after considering whether it would have been possible for the decree-holder to take any further steps in connection with the execution application after the dismissal of the application for adjournment: Held, (i) that the order of the Subordinate Judge dismissing the execution case without giving an opportunity to the decree holder’s pleader to state what he had to say the case itself was bad and was rightly set aside by the court its own initiative in exercise of its inherent powers. (ii)The High Court had no jurisdiction in the exercise of its appellate powers to reverse the order of restoration as that order by itself did not amount to a final determination of any question relating to execution, discharge or satisfaction of a decree within the meaning of s. -47, Criminal Procedure Code, and an order made under s. 151, Criminal Procedure Code, simpliciter is not an appealable order. Akshia Pillai v. Govindarajulu Chetty (A.I.R. 1924 Mad. 778), Govinda Padayachi v. Velu Murugiah Chettiar (A.I.R. 1933 Mad. 399) and Noor Mohammad v. Sulaiman Khan (A.I.R. 1943 Oudh 35) distinguished. (iii)As the order of the Subordinate Judge was one that he had jurisdiction to-make, and as he had, in making that order, neither acted in excess of his jurisdiction or with material irregularity nor committed any breach of procedure, the High Court acted in excess of its revisional jurisdiction under s. 115, Civil Procedure Code, and the order of remand and all proceedings taken subsequent to that order were illegal. Section 115, Civil Procedure Code, applies to matters of jurisdiction alone, the irregular exercise or non-exercise of it or the illegal assumption of it, and if a subordinate court had jurisdiction to make the order it has made and has not acted in breach of any provision of law or committed any error of procedure which is material and may have affected the ultimate decision, the High Court has no power to interfere, however profoundly it may differ from the conclusions of that court questions of fact or law. Rajah Amir Hassan Khan v. Sheo Baksh Singh (1883-83) 11 I.A. 237, Bala Krishna Udayar v. Vasudeva Aiyar (1917) 44 IA. 261, Venkatagiri Ayyangar v. Hindu Religious Endowments Board 138 1949) 76 I.A. 67, Joy Chand Lal Babu v. Kamalaksha Chowdhury 1949)76 I.A.131 and Narayan Sonaji v. Sheshrao Vithoba (I.L.R. 1948] Nag. 16) referred to. Mohunt Bhagwan Ramanuj Das v. Khettar Moni Dassi (1905) C.W.N. 617 and Gulab Chand Bargur v. Kabiruddin Ahmed (1931) 58 Cal. 111, dissented from.

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PETITIONER:
KESHARDEO CHAMRIA

 Vs.

RESPONDENT:
RADHA KISSEN CHAMRIA AND OTHERSRADHA KISSEN CHAMRIA AND OTHE

DATE OF JUDGMENT:
30/10/1952

BENCH:
MAHAJAN, MEHR CHAND
BENCH:
MAHAJAN, MEHR CHAND
DAS, SUDHI RANJAN
BOSE, VIVIAN
HASAN, GHULAM

CITATION:
 1953 AIR 23 1953 SCR 136
 CITATOR INFO :
 RF 1956 SC 391 (39)
 R 1959 SC 492 (19)
 E&D 1964 SC1336 (8)
 R 1971 SC2324 (7)
 R 1975 SC 794 (6)
 RF 1981 SC 707 (5)
 R 1988 SC1531 (104)

ACT:
Civil Procedure Code (Act V of 1908), ss. 47,115, 151-Execu-
tion proceedings-Dismissal of adjournment petition-Dismissal
of execution case also by same order without asking pleader
what he has to say-Restoration of case under inherent
powers-Appeal and revision petition to High Court from order
of restoration-Maintainability of appeal-Interference by,
High Court in revision-Legality-Revisional powers of High
Court-Appeal from orders made under inherent powers.

HEADNOTE:
A Subordinate Judge dismissed an application by a decree-
holder for adjournment of an execution case and by the same
order dismissed the execution case itself without informing
the decree. holder's pleader that the application for
adjournment had been dismissed and asking him whether be had
to make any submission in
 137
the matter of the execution case, and an application for
restoration of the execution case setting aside the order of
dismissal, the Subordinate Judge, finding that he had
committed an error which had resulted in denial of justice
restored the execution case in the exercise of the inherent
powers of the court under s. 151, Civil Procedure Code. The
judgment-debtor preferred an appeal and an application, for
revision to the High Court against this order. The High
Court held that the appeal was not maintainable but set
aside the order of the Subordinate Judge in the exercise of
its revisional powers and remanded the case to the
Subordinate Judge for fresh disposal after considering
whether it would have been possible for the decree-holder to
take any further steps in connection with the execution
application after the dismissal of the application for
adjournment:
Held, (i) that the order of the Subordinate Judge dismissing
the execution case without giving an opportunity to the
decree holder's pleader to state what he had to say the
case itself was bad and was rightly set aside by the court
its own initiative in exercise of its inherent powers.
(ii)The High Court had no jurisdiction in the exercise of
its appellate powers to reverse the order of restoration as
that order by itself did not amount to a final determination
of any question relating to execution, discharge or
satisfaction of a decree within the meaning of s. -47,
Criminal Procedure Code, and an order made under s. 151,
Criminal Procedure Code, simpliciter is not an appealable
order.
Akshia Pillai v. Govindarajulu Chetty (A.I.R. 1924 Mad.
778), Govinda Padayachi v. Velu Murugiah Chettiar (A.I.R.
1933 Mad. 399) and Noor Mohammad v. Sulaiman Khan (A.I.R.
1943 Oudh 35) distinguished.
(iii)As the order of the Subordinate Judge was one that he
had jurisdiction to-make, and as he had, in making that
order, neither acted in excess of his jurisdiction or with
material irregularity nor committed any breach of procedure,
the High Court acted in excess of its revisional
jurisdiction under s. 115, Civil Procedure Code, and the
order of remand and all proceedings taken subsequent to that
order were illegal.
Section 115, Civil Procedure Code, applies to matters of
jurisdiction alone, the irregular exercise or non-exercise
of it or the illegal assumption of it, and if a subordinate
court had jurisdiction to make the order it has made and has
not acted in breach of any provision of law or committed any
error of procedure which is material and may have affected
the ultimate decision, the High Court has no power to
interfere, however profoundly it may differ from the
conclusions of that court questions of fact or law.
 Rajah Amir Hassan Khan v. Sheo Baksh Singh (1883-83) 11
I.A. 237, Bala Krishna Udayar v. Vasudeva Aiyar (1917) 44
IA. 261, Venkatagiri Ayyangar v. Hindu Religious Endowments
Board
138
1949) 76 I.A. 67, Joy Chand Lal Babu v. Kamalaksha Chowdhury
1949)76 I.A.131 and Narayan Sonaji v. Sheshrao Vithoba
(I.L.R. 1948] Nag. 16) referred to.
Mohunt Bhagwan Ramanuj Das v. Khettar Moni Dassi (1905)
C.W.N. 617 and Gulab Chand Bargur v. Kabiruddin Ahmed (1931)
58 Cal. 111, dissented from.JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 12 and 13
of 1951.
Appeals from the Judgment and Decree dated the 17th/21st
February, 1947, of the High Court of Judicature at Calcutta
(Mukherjea and Biswas JJ.) in Appeal from Original Order No.
62 of 1946 with cross-objectiou and Civil Revision Case No.
657 of 1946 arising out of Judgment and Order dated the 13th
March, 1946, of the Court of the Subordinate Judge, Howrah,
in Title Execution Case No. 68 of 1936.
M. C. Setalvad (Attorney-General for India) and
Purushottam Chatterjee (S. N. Mukherjee, with them) for the
appellant in Civil Appeal No. 12 of 1951 and respondent in
Civil Appeal No. 13 of 1951.
C. K. Daphtary (Solicitor-General for India) and N. C.
Chatterjee (C. N. Laik and A. C. Mukherjea, with them) for
the respondents in Civil Appeal No. 12 of 1951 and
appellants in Civil Appeal No. 13 of 1951.
1952. October 30. The judgment of the Court was delivered
by
MAHAJAN J.-These are two cross-appeals from the decision of
the High Court at Calcutta in its appellate jurisdiction
dated 17th February, 1947, modifying the order of the
Subordinate Judge of Howrah in Title Execution Case No. 68
of 1936.
The litigation culminating in these appeals comnmenced about
thirty years ago. In the year 1923, one Durga Prasad
Chamria instituted a suit against the respondents, Radha
Kissen Chamria, Motilal Chamria and their mother Anardevi
Sethan (since deceased) for specific performance of an
agreement,
 139
for sale of an immoveable property in Howrah claiming a sum
of Rs. 11,03,063-8-3 and other reliefs. The suit, was
eventually decreed compromise the 19th April, 1926.
Under the compromise decree the plaintiff became entitled to
a sum of Rs. 8,61,000 from the respondents with interest at
61 per cent. with yearly rests from the date fixed for
payment till realization. Part of the decretal sum was
payable the execution of the solenama and the rest by
instalments within eighteen months of that date.
Within fifteen months from the date of the decree a sum of
Rs. 10,00,987-15-6 is said to have been paid towards
satisfaction of it. No steps were taken either by the
judgment-debtors or the decre-holder regarding certification
of most of those payments within the time prescribed by law.
The judgment-debtors after the expiry of a long time made an
application for certification but the decree-holder
vehemently resisted it and declined to'admit the payments.
The result was that the court only recorded the payment of
the last three instalments which had been made within ninety
days before the application and the judgmentdebtors had to
commence a regular suit against the decree-holder for
recovery of the amounts paid, and not admitted in the
execution proceedings. In the year 1929 a decree was passed
in favour of the judgment-debtors for the amount paid by
them and not ,certified in the execution. In the meantime
the decree-holder had realized further amounts in execution
of the decree by taking out execution proceedings two or
three occasions. The amount for which a decree had been
passed against the decree-holder was also thereafter
adjusted towards the amount duo under' the consent decree.
 On the 17th March, 1933, the decree was assigned by
Durga Prasad to the appellant Keshardeo Chamria. The
execution proceedings out of which these appeals arise were
started by the assignee the 10th October, 1936, for the
realization of Rs. 4,20,693-8-9 and interest and costs.
This execution had a chequered career. To begin with, the
judgment-debtors raised
140
an objection that the assignee being a mere benamidar of
Durga Prasad Chamria had no locus standi to take out
execution. This dispute eventually ended in favour of the
assignee after about five years' fight and it was held that
the assignment was bonafide and Keshardeo was not a
benamidar of the decree-holder.
 On the 17th July, 1942, Keshardeo made an application for
attachment of various new properties of the judgment-debtors
and for their arrest. Another set of objections was filed
against this application by Radha Kissen Chamria. He
disputed the correctness of the decretal amount, and
contended that a certain payment of Rs. 1,60,000 should be
recorded and certified as made -the 28th May, 1934, and not
the date the sum was actually paid to the decreeholer. This
objection was decided by the Subordinate Judge the 11th
September, 1942, and it was held that the judgment-debtors
were liable to pay interest the sum of Rs. 1,60,000 up to
the 12th October, 1936, and not up to the 4th July, 1941,
'as claimed by the assignee. appeal the High Court by its
judgment dated the 22nd June, 1943, upheld the decree-
holder's contention, and ruled that the judgment-debtors
were liable to pay interest up to the 4th July, 1941, this
sum of Rs. 1,60,000. The judgment-debtors then applied for
leave to appeal to the Privy Council against this decision
and leave was granted. the 13th February, 1945, an
application wag made to withdraw the appeals, and with-'
drawal was allowed by an order of the court dated the 20th
February, 1945. Thus the resistance offered by the
judgment-debtors to the decree-holder's application of the
17th July, 1942, ended the 20th February, 1945.
 The records of the execution case were then sent back
by the High Court and reached the Howrah Court the 28th
February, 1945. The decreeholder's counsel was informed of
the arrival of the records by an order dated the 2nd March,
1945. The hearing of the case was fixed for the 5th March
1945. the 5th March, 1945 the court made the following
order;-
 141
Decree-holder prays for time to take necessary steps. The
case is adjourned to 10th March, 1945, for order. Decree-
holder to take necessary steps by, that date positively. "
The decree-holder applied for further adjournment, of the
case and the 10th the court passed an order in these
terms:-
"Decree-holder prays for time' again to give necessary
instructions to his pleader for taking necessary steps. The
'petition for time is rejected. The execution case is
dismissed part satisfaction. "
When the decree-holder was apprised of this order, he, the
19th March, 1945, made an application under section 151,
Civil Procedure Code, for restoration of the execution and
for getting aside the order of dismissal. this
application notice was issued to the judgment-debtors who
raised a number of objections against the decree-holder's
petition to revive the execution. By an order dated the
25th April, 1945, the Subordinate Judge granted the decree-
holder's prayer and ordered restoration of the execution.
The operative part of the order is in these terms:-
 " 10th March, 1945, the decree-holder again prayed
for time for the purpose of giving necessary instructions to
his pleader for taking steps. That petition was rejected by
me. 10th March,, 1945, by the same order-I mean the
order rejecting the petition for adjournment-I dismissed the
'execution -case part satisfaction. The learned counsel
behalf of the present petitioner wants me to vacate the
order by which I have dismissed the execution case part
satisfaction. He has invoked the aid of section 151, Civil
Procedure Code,: for cancellation of this order and the
consequent restoration of the execution case. I would
discuss at the very outset as to whether I was justified in
dismissing the,execution case in the same order,after
rejecting the petition of the decree-holder for an
142
adjournment without giving him an opportunity to his pleader
to make any submission he might have to make after the
rejection of the petition for time. It is clear from the
order that the fact that the petition for time 'filed by the
decree-holder 10th March, 1945, was rejected by me was not
brought to the notice of the pleader for the decree-holder.
It seems to me that there was denial of justice to the
decree-holder in the present execution proceeding inasmuch
as it was a sad omission my part not to communicate to his
pleader the result of this petition he made praying for an
adjournment of this execution proceeding and at the same
time, to dismiss the execution case part satisfaction
which has brought about consequences highly prejudicial to
the interest of the decree-holder. I think section 151,
Civil Procedure Code, is the only section which. empowers me
to rectify the said omission I have made in not com-
municating to the pleader for the decree-holder as to the
fate of his application for an adjournment of the execution
case and as such I would vacate the order passed by me
dismissing the execution case part satisfaction. The ends
of justice for which the court exists demand such
rectification and I would do it. The learned Advocate-
General behalf of the judgment-debtor Radha Kissen has
argued before me that this court has no jurisdiction to
vacate the order passed by me 10th March, 1945, dismissing
the execution case part satisfaction. His argument is
that section 48, Civil Procedure Code, stands in my way
inasmuch as the law of limitation as provided in the above
section debars the relief as sought for by the decree-holder
in the present application. I do not question the soundness
of this argument advanced by the learned Advocate-General.
The facts of this case bring home the fact that in the
present case I am rectifying a sad omission made by me which
brought about practically a denial of justice to the decree-
holder and as such the operation of section 48, Civil
Procedure Code, does not come to the assistance of the
judgment-debtor Radha Kissen,"
 143
It would have saved considerable expense and trouble to the
parties had the dismissal for default chapter been closed
for ever by this order of the Judge; the proceedings,
however, took a different course. A serious controversy
raged between the parties about the correctness of this
obviously just order and after seven years it is now before
us. An appeal and a revision were preferred to the High
Court against this order. By its judgment dated 24th
August, 1945, the High Court held that no appeal lay against
it as the question involved did not fall within the ambit of
section 47, Civil Procedure Code. It, however, entertained
the revision application and allowed it, and remanded the
case to the Subordinate Judge for reconsideration and
disposal in accordance with the observations made in the
order. The High Court took the view that the Subordinate
Judge was in error in restoring the execution without taking
into consideration the point whether the decree-holder's
pleader could really take any step in aid of the execution
if he had been apprised of the order of the court dismissing
the adjournment application. This is what the High Court
said:-
"The ground put forward by the Subordinate Judge in support
of his order for restoration is that the order rejecting the
adjournment petition should have been communicated to the
pleader for the decree-holder but this was not done. We
will assume that this was an omission the part of the
court. The question now is whether it was possible for the
decree-holder to take any further steps in connection with
the execution of the decree and thereby prevent the
execution case from being dismissed for default. No
evidence was taken by the learned Subordienate Judge this
point and even the pleader who was in charge of the
execution case behalf of the decree-holder was not
examined............ If really the decree-holder was not in
a position to state that day as to what was the amount due
under the decree for which he wanted the execution to be
levied and if according to him it required elaborate
accounting for the purpose
144
of arriving at the proper figure, it was not possible for
him to ask the court to issue any process by way of
attachment of the property that date. It seems to us that
the learned Judge should have considered this matter
properly and he should have found proper material as to
whether the decree-holder could really take any steps after
the application for adjournment was disallowed."
In sharp contrast to the opinion contained in the order of
remand is the view now expressed by the High Court this
point in its final judgment under appeal
"One important circumstance which, in our opinion ; tells
'in favour of the decreeholder is the fact we have noticed
before, namely, that after the' petition for time was
rejected the court did not call the execution case and
otherwise intimate its decision to go with it. In one
sense this,might be regarded as a mere error of procedure
the part of the court which it would be wrong to allow the
decreeholder to take advantage of, but an, error it was, as
was admitted by the learned judge himself who had dealt with
the matter, and we do not think his opinion, can be lightly
brushed aside. There can be no doubt that the learned judge
was in the best position to speak-as regards the actual
proceedings in his court % the 10th March, 1945, and if he
thought that it amounted to a 'denial of justice' to have
rejected the petition for time and by the same order to
dismiss the ,execution case, it is not for us to say that he
was not right. It may well be that even if the case was
called - the decree-holder's pleader would even then have
been absent, but having regard to all the facts and
circumstances of the case, we think the court might yet give
the decree-holder the benefit of doubtin this matter, and
assume in his favour that his pleader would have appeared
before the learned, judge and tried to avert a peremptory
dismissal of the execution case, even though he or his
client might not have been fully ready with all necessary
materials for continuing the execution proceeding.
 145
 As we have pointed out before and as the court below
has also found, it was possible,for the decreeholder or his
pleader to have submitted to the court, some sort,of an
account of the decretal dues that date after refusal of
the adjournment but even if this could not be done, we still
believe that the pleader, if he appeared, could have done
something, either by drawing the court's attention to some
of its previous orders or otherwise, by which a dismissal of
the case might be prevented."
It was not difficult to envisage what the counsel would have
done when faced with such a dilemma. He, would. have
straightaway stated that the execution should issue, for an
amount,which was roughly known to' him, and that the court
should,issue a process, for the arrest of the judgment-
debtors. BY such a statement he would have saved the
dismissal without any,detriment to his client: who could
later make another application stating the precise amount
due and praying for additional reliefs.
After remand the 13th March, 1946, the learned Subordinate
Judge restored the execution case in respect of a sum of
Rs.92,OOO only and maintained the order of dismissal in
other respects. He held that the decree-holder was grossly
negligent on the 5th and the 10th March, 1945, and that due
to his -negligence the execution case was dismissed in
default that even if his pleader had been informed of the
order rejecting the application for adjournment he could not
have taken any steps to prevent the dismissal of the execu-
tion; that the execution being now barred by limitation the
judgment-debtors should not be deprived of the valuable
rights acquired by them but at the same time they should not
be allowed to retain the advantage of an acknowledgment of a
debt of Rs, 92,000 made by the decree-holder.
Both the decree-holder and the judgment-debtors were
dissatisfied with this order. The decree-holder preferred
an appeal to the High Court and also filed an application
under section 115, Civil Procedure
146
Code. The judgment-debtors filed cross objections in the
appeal and also preferred an alternative application in
revision.
The appeal, the cross-objections and the two revision
'applications were disposed of together by the High Court by
its judgment dated 17th February, 1947. The order
dismissing the execution in default was set aside and the
case was restored terms. The decreeholder was held
disentitled to interest the decretal amount from 10th
March, 1945, to the date of final ascertainment of the
amount of such interest by the executing court and was
ordered to pay to the judgment-debtors a consolidated sum of
Rs. 20,000 by way of compensatory costs. He was to pay this
amount to the judgment-debtora within two weeks of the
arrival of the records in the executing court or have it
certified in the execution. In default the appeal was to
stand dismissed with costs and the cross-objections decreed
with costs.
An application for leave to appeal to His Majesty in Council
against this order was made by the judgment-debtors and
leave was granted to them 30th May, 1947. The decree-
holder also applied for leave and he was granted leave
27th June, 1946. Both the appeals were consolidated by an
order of the court dated 4th December, 1947, and thereafter
the appeals were transferred to this court.
On behalf of the decree-holder it was contended that the
High Court was wrong in allowing the judgment-debtors Rs.
20,000 by way of compensation for costs, and that having
regard to the terms of the compromise decree it had no
jurisdiction to deprive the decree-holder of the interest
allowed to him by the decree, and that it had neither power
nor jurisdiction under section 115, Civil Procedure Code, to
set aside the order dated 25th April, 1945, passed by Mr.
Chakravarti, Subordinate Judge, under section 151 of the
said Code and that the interlocutory remand order of the
High Court being without jurisdiction., all subsequent
proceedings taken thereafter were null and void.
147
The earned counsel for the judgment-debtors not only
supported the judgment of the High Court to the extent it
went in their favour but contended that the High Court
should have refused to restore the execution altogether and
that the assumption made by it that the decree-holder's
pleader could do something to prevent the dismissal of the
case or could present some sort of statement to the court
was wholly unwarranted and unjustifiable. It was urged that
it ought to have been held that the decree-holder was guilty
of gross negligence and he was himself responsible for the
dismissal of the case, and that it was not necessary to
formally call the case after the rejection of the petition
for adjournment and that a valuable right having accrued to
the judgment-debtors by efflux of time, they should not have
been deprived of it in the exercise of the inherent powers
of the court.
It is unnecessary to consider all the points taken in these
appeals because, in our opinions the point canvassed
behalf of the decree-holder that the order of remand was
without jurisdiction and that all the proceedings taken
subsequent to the order of the executing court reviving the
execution were void, has force. The sole ground which the
Subordinate Judge had ordered restoration of the execution
was that he had himself made a sad mistake in dismissing it
at the same time that he dismissed the adjournment
application without informing the decree-holder's counsel
that the request for adjournment had been refused and
without calling upon him to state what he wanted done in the
matter in those circumstances. As the Subordinate Judge was
correcting his own error in the exercise of his inherent
powers, it was not necessary for him to investigate into the
correctness of the various allegations and counter-
allegations made by the parties. He was the best judge of
the procedure that was usually adopted in his court in such
cases and there is no reason whatsoever for the supposition
that when the Subordinate Judge said that he had not given
any opportunity to
148
the decree-holder's pleader to take any steps in execution
of the decree after the dismissal of the adjournment
application he was not right.It could not be seriously
suggested that such an opportunity was given to the decree-
holder, the dismissal order of the execution having been
made at the same moment of time as the order dismissing the
application for adjournment It is quite clear that the
interest of justice demanded that the decree-holder's
pleader should have been informed that his request for
adjournment had been refused, and further given opportunity
to state what he wanted done in that situation. It was
wholly unnecessary in such circumstances to speculate what
the pleader would have -done when faced with that situation.
I The solid fact remains that he was not given that
opportunity and that being so, the order dismissing the
execution was bad and was rightly corrected by the court
its own initiative in the exercise of its inherent powers.
The point for determination then is whether such an order
could be set aside by the High Court either in the exercise
of its appellate or revisional powers. It is plain that the
High Court bad no jurisdiction in the exercise of its
appellate jurisdiction to reverse this decision. In the
remand order itself it was held that it was difficult to say
that the order by itself amounted to a final determination
of any question relating to execution, discharge or
satisfaction of a decree and that being so, it did not fall
within the ambit of section 47 Civil Procedure Code. We are
in entire agreement with this observation. The proceedings
that commenced with the decree-holder's -application for
restoration of the execution and terminated with the order
of revival can in no sense be said to relate to the
determination of - any question concerning the ,execution,
discharge or satisfaction of the decree. Such proceedings
are in their nature collateral to the execution and are
independent of it.
It was not contended and could not he seriously urged that
an order under section 151 simpliciter is
 149
appealable. Under the Code of Civil Procedure certain
specific orders mentioned in section 104 and Order XLIII,
rule 1, only are appealable and no appeal lies from any
other orders. (Vide section 105, Civil Procedure Code). An
order made under action 151 is not included in the category
of appealable orders.
In support of his contention that an order made under
section 151 may in certain circumstances be appealable, Mr.
Daphtary placed reliance two single Judge judgments of the
Madras High Court and a Bench decision of Oudh. [Vide
Akshia Pillai v. Govindarajulu Chetty(1); Govinda Padayachi
v. Velu Murugiah Chettiar(2); Noor Mohammad v. Sulaiman
Khan(1)]. In all these cases execution sale had been set
aside by the court in exercise of inherent powers and it was
held that such orders were appealable. The ratio of the
decision in the first Madras case is by no means very clear
and the reasoning is somewhat dubious. In the other two
cases the orders were held appealable the ground that they
fell within the ambit of section 47, Civil Procedure Code,
read with section 151. It is unnecessary to examine the
correctness of these decisions as they have no bearing the
point before us,' there being no analogy between an order
setting aside an execution sale and an order setting aside
the dismissal of an application. The High Court was thus
right in upholding the preliminary objection that no appeal
lay from the order of the Subordinate Judge dated 25th
April, 1945.
We now proceed to consider whether a revision was competent
against the order of the 25th April, 1945, when no appeal
lay. It seems to us that in this matter really the High
Court entertained an appeal in' the guise of a revision.
The revisional' jurisdiction of the High Court is set out in
the 115th section of the Code of Civil Procedure in these
terms:-
(I) A.I.R. 31924 Mad. 778. (3) A.I.R. 1943 Oudh 35.
(2) A.I.R. 1933 Mad. 399
20
150
"The High Court may call for the record of any case which
has been decided by any court subordinate to such High Court
and in which appeallies thereto, and if such subordinate
court appears:
(a) to have exercised a jurisdiction not vested in it by
law, or
(b) to have failed to exercise a jurisdiction so vested, or
(e) to have acted in the exercise of its jurisdiction
illegally or with material irregularity, the High Court may
make 'such order in the case as it thinks fit.,,
 A large number of cases have been collected in the
fourth edition of Chitaley & Rao's Code of Civil Procedure
(Vol. I), which only serve to show that the High Courts
have not always appreciated the limits of the jurisdiction
conferred by this section. In Mohunt Bhagwan Ramanuj Das v.
Khetter Moni Dassi(1), the High Court of Calcutta expressed
the opinion that sub-clause (c.) of section 115, Civil Pro-
cedure Code, was intended to authorize the High Courts to
interfere. and correct gross and palpable errors of
subordinate courts, so as to prevent grave injustice in non-
appealable cases. This decision was, however, dissented
from by the same High Court in Enat Mondul v. Baloram
Dey(2), but was cited with approval by Lort-Williams J., in
Gulabohand Bangur v. Kabiruddin Ahmed(1). In these
circumstances it is worthwhile recalling again to mind the
decisions ,of the Privy Council this subject and the
limits stated therein for the exercise of jurisdiction
conferred by this section the High Courts.
 As long ago as 1894, in Hajah Amir Has8an Khan'v. Sheo
Baksh Singh(1), the Privy Council made the following
observations section 622 of the former Code of Civil
Procedure, which was replaced by section 115 of the Code of
1908:- -"The question then is, did the Judges of the lower
courts in this case, in the exercise of their
(I) (1897) I C.W.N. 617. (3) (1931) I.L.R. 58 Cal. III.
(a) (1899) C.W.N 581. (4) (1883-84) L.R. xi I.A. 237.
151
jurisdiction, act illegally or with material irregularity.
It appears that they had perfect jurisdiction to decide the
case, and even if they decided wrongly, they did not
exercise their jurisdiction illegally or with material
irregularity."
In 1917 again in Balakrishna Udayar v. Vasudeva Aiyar(1),
the-Board observed:-
"It will be observed that the section applies to
jurisdiction alone, the irregular exercise or nonexercise of
it, or the illegal assumption of it. The section is not
directed against conclusions of law or fact in which the
question of jurisdiction is not involved."
In 1949 -in Venkatagiri Ayyangar v. Hindu Religious
Endowments Board, Madras(1), the Privy Council again
examined the scope of section 115 and observed that they
could see no justification for the view that the section was
intended to authorize the High Court to interfere and
correct gross and palpable errors - of subordinate courts so
as to prevent grave injustice in non-appealable cases and
that it would be difficult to formulate any standard by
which the degree of err-or of subordinate courts could be
measured. It was said-
" Section 115 applies only to cases in which no appeal lies,
and, where the legislature has provided no right of appeal,
the manifest intention is that the order of the trial Court,
right or wrong, shall be final. The section empowers the
High Court to satisfy itself three matters, (a) that the
order of -the subordinate court is within its jurisdiction ;
(b) that the case is one in which the court ought to
exercise jurisdiction; and (c) that in exercising
jurisdiction the court has not acted illegally, that is, in
breach of some provision of law, or with material
irregularity, that is, by committing some error of procedure
in the course of the trial which is material in that it may
have affected the ultimate decision. If the High Court is
satisfied those three matters,, it has no
(1) (1917) L.R. 44 I,A. 26i.
(2) (1949) L.R. 76 I.A. 67.
power to interfere because it differs, however profoundly,
from the conclusions of the subordinate court questions of
fact or law."
Later in the same year in Joy Chand Lal Babu v. Kamalaksha
Choudhury(1), their Lordships had again adverted to this
matter and reiterated what they had said in their earlier
decision. They pointed out-
"There have been a very large number of decisions of Indian
High Courts section 115 to many of which their Lordships
have been referred. Some of such decisions prompt the
observation that High Courts have not always appreciated
that although error in a decision of a subordinate court
does not by itself involve that the subordinate court has
acted illegally or with material irregularity so as to
justify interference in revision under sub-section (c),
nevertheless, if the erroneous decision results in the sub-
ordinate court exercising a jurisdiction not vested in it by
law, or failing to exercise a jurisdiction so, vested, a
case for revision arises under subsection (a) or subsection
(b) and sub-section (c) can be ignored."
Reference may also be made to the observations of Bose J. in
his order of reference in Narayan Sonaji v. Sheshrao
Vithoba(2) wherein it was said that the words "illegally"
and "material irregularity" do not cover either errors of
fact or law. They do not refer to the decision arrived at
but to the manner in which it is reached. The errors
contemplated relate to material defects of procedure and not
to errors of either law or fact after the formalities which
the law prescribes have been complied with.
We are therefore of the opinion that in reversing the order
of the executing court dated the 25th April, 1945, reviving
the execution, the High Court exercised jurisdiction not
conferred it by section 116 of the Code. It is plain that
the order of the Subordinate Judge dated the 25th April, .
1945, was one that he had jurisdiction to make, that in
making that order he neither acted in excess, of his
jurisdiction
(I) (I949) T .R . 76 J. A. 131.
(2) A.I.R. 1948 Nag. 258.
153
nor did he assume jurisdiction which he did not possess. It
could not be said that in the exercise of it he acted with
material irregularity or committed any breach of the
procedure laid down for reaching the result. All that
happened was that he felt that be had committed an error, in
dismissing the main execution while he was merely dealing
with an adjournment application. It cannot be said that his
omission in not taking into consideration what the decree-
holder's pleader would have done had he been given the
opportunity to make his submission amounts to material
irregularity in the exercise of jurisdiction. This
speculation was hardly relevant in the view of the case that
he took. The Judge had jurisdiction to correct his own
error without entering into 'a discussion of the grounds
taken by the decree-holder or the objections raised by the
judgment-debtors. We are satisfied therefore that the High
Court acted in excess of its jurisdiction when it
entertained an application in revision against the order of
the Subordinate Judge dated the 25th April, 1945, and set it
aside in exercise of that jurisdiction and remanded the case
for further enquiry.
 The result therefore is that Appeal No. 12 of 1951 is
allowed, as the interlocutory remand order of the High Court
was one without jurisdiction and that being so, the
subsequent proceedings taken in consequence of it, viz., the
order of the Subordinate Judge restoring the application for
execution to the extent of Rs. 92,000, and the further order
of the High Court appeal restoring the execution case
terms, are null and void and have to be set aside and the
order of the executing court dated the 25th April, 1945,
restored. We order accordingly. Appeal No. 13 of 1951 is
dismissed.
 In the peculiar circumstances of this case we direct
that the parties be left to bear their own costs throughout,
that is, those incurred by them in the High Court in the
proceedings which terminated with the remand order, the
costs incurred in the subordinate court after the remand
order, and the costs there after
154
incurred in the High Court and those incurred in this court i
n
these appeals.
Appeal No. 12 allowed.
Appeal No. 13 dismissed.
I Agent for the appellant in C. A. No. 12 and respondent in
C.A. No. 12: P. K. Chatterjee.
Agent for the respondents in C. A. No. 12 and appellants in
C. A. No. 13: Sukumar Ghose.
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