Mithalal Ranchhoddas v. Maneklal Mohanlal Modia

Broomfield, J.:— This purports to be an application in revision under section 115 of the cpc, and as in our opinion it does not come within the terms of that section, we propose to reject it as incompetent without going into the merits of the matter. The applicant made an application under o. 21, r. 95, that is to say he applied as auction purchaser to get possession of the property of the judgment-debtor, and his application was rejected by the Court on the ground that it was barred by limitation. The only point which can be urged in this revision application, is the point of limitation and in our view a finding on a question of limitation, whether right or wrong, is generally speaking a finding on a point of law which does not bring the case within the ambit of S. 115, because it cannot be said that the Court has exercised a jurisdiction not vested in it by law, or failed to exercise a jurisdiction vested in it, or to have acted in the exercise of its jurisdiction illegally or with material irregularity. The point was one which the Court had jurisdiction to decide, and whether the decision was right or wrong, the decision is final, unless it is subject to appeal, and in this case there is no appeal.

2. Learned advocate for the applicant drew our attention to 46 Mad 9381, in which it was held that where a lower Court declines to exercise jurisdiction by refusing to entertain an appeal on account of a wrong decision on a question of limitation as to when the appeal should have been filed, the High Court has power to revise the order under S. 115. But that case has been dissented from by the learned Chief Justice in 40 Bom LR 1522. He there pointed out that although a Judge who dismisses an application by disregarding the plain words of a provision of the limitation act may be said to exercise his jurisdiction illegally and with material irregularity so that the High Court can interfere under s. 115, the position is different where the Court has considered a question of limitation and disposes of the case in accordance with its interpretation of the law. Where a Court dismisses a suit on the ground of limitation, it takes cognizance of the suit and exercises jurisdiction by holding that the suit fails on a point of law. In such a case S. 115 cannot apply. This view is in accordance with previous decisions of this High Court. The learned Chief Justice referred to 11 Bom 4883. The Court was actually concerned there with a wrong decision, or a decision which was alleged to be wrong, on a question of res judicata. It was held that the decision, even though wrong, of a question of res judicata was not a failure to exercise jurisdiction, and did not warrant the interference of the High Court under the section of the Code which corresponded to the present S. 115. 9 Bom 4324 was followed. West, J. in his judgment in 11 Bom 488 said that the same considerations would apply in the case of a decision on a point of limitation. The same view has been taken by other High Courts. We are not therefore prepared to follow the ruling of the Madras High Court which Mr. Thakor has cited.

3. I may mention with reference to 40 Bom LR 152 that what happened here was this. The point was when the auction sale became absolute within the meaning of Article 180 of the Limitation Act. The learned Subordinate Judge held on the construction of the article and on a consideration of the authorities cited to him that the sale became absolute on a particular date, and that the applicant was not entitled to exclude the time taken up in a certain suit in the computation of the period of limitation. Obviously then this was not a case of a Judge ignoring the plain words of a provision of the limitation act. The case is covered by the ruling of the learned Chief Justice and the earlier authorities to which I have referred and we hold that s. 115 does not apply.

4. Mr. Thakor suggested that we might interfere even apart from the provisions of s. 115, and relied on 29 Bom LR 15515. The view was expressed in that case that the High Court of Bombay has, apart from section 115 of the cpc, the power to call for the proceedings of any subordinate civil Court and to issue orders thereon, under Bombay Regulation, 2 of 1827, s. 5, cl. (2), in spite of its repeal by Act 12 of 1873, by virtue of Sections 106 and 130 of the Government of India Act, 1915.

5. As the Government of India Act of 1915 is no longer in force, and as under the present Government of India Act the High Court's power of superintendence does not extend to interference with judicial orders, it may be doubted whether the proposition laid down in this case is still sound. But whether it is or not, we can see no reason why we should go out of our way to interfere in revision in the present case, and we discharge the rule with costs.

G.N/R.K

6. Rule discharged.