1. This is an appeal under Section 15 of the Letters Patent arising from a difference of opinion between Chaterjea, J., and Mullick, J.

2. The facts are as follows:

The landlord of the judgment-debtor obtained a decree for rent against him, and in execution thereof, the Judgment-debtor's interest in a Patni tenure was sold. His interest was a 2/3rds share. At the sale the debtor's interest was bought for Rs. 2,755 by Kumar Chandra Kishore Roy Chowdhury, who was the owner of the remaining l/3rd share. The judgment-debtor applied under Order XXI, Rule 90, to have the sale set aside: the Munsif in the Court of first instance set aside the sale on the ground that he was not satisfied that the sale proclamation was duly published, and on the further ground that the price was deliberately understated in the proclamation and that the disputed property was a valuable one and might be worth Rs. 6,000, as alleged by the judgment-debtor.

3. The auction-purchaser appealed from the order of the Court of first instance and the District Judge allowed the appeal. On the motion of the judgment-debtor, a Rule was issued by the High Court which came on for hearing before Chatterjea, J., and Mullick, J. Chatterjea, J., held that the Court had power to interfere under Clause (c) of Section 115 of the Civil Procedure Code or under Section 15 of the Indian High Courts Act, 1861. On the other hand, Mullick, J., came to the conclusion that having regard to the limited operation of Section 115, the Court had no jurisdiction to interfere: he expressed no opinion as to Section 5 of the Indian High Courts Act.

4. The opinion of the Senior Judge prevailing, an order remanding the case was made and a re-hearing was directed: hence this appeal by the auction-purchaser.

5. The grounds upon which Chatterjea, J., based his judgment were:

(1) That the learned District Judge did not come to any finding, (a) as to whether there was a deliberate misstatement as to value in the sale proclamation; or (6) as to the publication of the proclamation.

(2) That the learned District Judge started with a misconception on a fundamental point, in that he based his judgment upon the assumption that what was sold was one-third share of the Panti Taluk, whereas in fact it was a two-thirds share.

(3) That the learned District Judge assumed that the purchaser was a 'new comer', whereas he was himself a co-sharer in the Patni tenure to the extent of one-third.

6. The question is, whether under the above circumstances the case comes within Clause (c) of Section 115 of the Civil Procedure Code.

7. The clause provides as follows : 11 5.

"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 no appeal lies thereto, and if such subordinate Court appears... (c) 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."

8. This clause has been the subject of judicial decision in this Court, e. g,, in Shew Prosad Bungshidhur v. Ram Chunder Haribux 23 Ind. Cas. 977 :41 C. 323 at. p. 338, Jenkins, C.J. said: "It appears to me that Section 115 can only be called in aid when the failure of justice (if any) has been due to one or other of the faults of procedure indicated in that section.

9. In Krishna Mohini Dossee v. Kedarnath Chuckerbutty 15 c. 446 at. p. 449 : 7 Ind. Dec. (N.S.) 882 Petheram, C.J. speaking of Section 622 of the Code of Civil Procedure of 18S2, which was in terms similar to the section now under discussion, said : But then comes a very different and more difficult question, and that is the question whether this order can be revised by the Court under Section 622 of the Code of Civil Procedure. This is a section which has been a good deal enquired into.

10. In our opinion it is a section of very limited operation. What the section says is that the High Court may revise a decision of the Court by which the case was decided if the Court appears to have exercised a jurisdiction not vested in it by law, or to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity.

11. Now, it seems to us, that the meaning of this section is that, whenever a Court has jurisdiction to decide a question, whether it is a question of law or a question of fact, its decision on that question is not revisable by this Court.

12. Both of these decisions were based upon the decision of the Judicial Committee of the Privy Council in Amir Hossan Khan v. Sheo Bakhsh Singh 11 C. 6 : 11 I.A. 237 : 4 Sar. P.C.J. 559 : Reriqyue & Jackson's P.C. No. 83 : 5 Ind. Dec. (N.S.) 760.

13. The question therefore is, can it be said that the District Judge acted in the exercise of his jurisdiction illegally or with material irregularity, and having regard to the construction put on Clause (c) of Section 115, was the failure of justice due to such a fault of procedure as is indicated in this clause.

14. As regards the misstatement of value in the proclamation, as I read the District Judge's judgment, he assumed that there was such a misstatement but he thought it was not a material irregularity.

15. As regards the alleged want of finding with reference to the publication of the proclamation, I think that the learned District Judge should have arrived at a definite conclusion on this point, but in view of his finding that the price obtained for the property was adequate, this matter was apparently considered by him as of no material importance to his judgment. As regards his misconception as to what was sold, and as to the position of the auction-purchaser, the learned Judge made a grave mistake of fact.

16. The learned Judge, however, had jurisdiction to decide all these questions, and if he made a mistake as to law or fact, this Court cannot interfere by way of revision. He had to decide whether the price obtained for the property was adequate. To arrive at a conclusion thereon he would naturally first have to decide what was the plaintiff's interest in the Patni Taluk and whether the purchaser was a person who would pay a fair price. He stated that the property sold was a 1/3rd share, and therein he made a grave mistake, as the plaintiff's interest was a 2/3rds share he also considered the purchaser to be a "new comer" whereas he was himself a co-sharer.

17. These are questions which in my judgment the learned Judge had jurisdiction to decide, and although he made grave mistakes of fact, upon which he based his judgment with respect to these matters, in view of the construction placed upon the section in the above-mentioned cases, with which I agree, his decision is not revisable by this Court. It may be noted that the judgment-debtor was not without a remedy; he could have applied to the learned District Judge for a review and if the attention of the learned Judge had been drawn to the serious mistake of fact which he had made, it is almost impossible to believe that the application for review would have been refused.

18. As regards the contention that this Court has power to interfere under Section 15 of the Indian High Courts Act, 1861. Having regard to the circumstances of this case, in my judgment this Court has no such power.

19. There was no right of appeal from the order of the District Judge, and in my opinion, as already stated, under the circumstances of the case, this Court has no jurisdiction under Section 115 of the Civil Procedure Code to revise the judgment of the District Judge; if this Court were to interfere, basing its interference upon the powers conferred by Section 15 of the Indian High Courts Act, it would in my judgment be straining the meaning of the word superintendence" unduly. It would mean that although there was no right of appeal and no power to revise under Section 115 of the Code, this Court could by exercising its power of "superintendence" in effect hear an appeal, or act in revision. I am not prepared so to hold, and indeed it is not necessary to put upon the section in question any such strained meaning, because, as already stated, there was an obvious remedy available to the judgment-debtor, viz., by way of review, by means of which the unfortunate mistake could have been put right.

20. A preliminary point was taken that there was no right of appeal. In my judgment an appeal lies on the ground that Chatterjea, J.'s judgment was one which deprived the auction-purchaser of the benefit of the District Judge's judgment, which confirmed the sale, and consequently it was a judgment which materially affected the merits of the question between the parties.

21. For these reasons, in my judgment, the appeal should be allowed with costs both in this Court and before Chatterjee and Mullick, JJ., the Rule should be discharged and the order directing a re-hearing should be set aside. We assess the hearing fee at two gold mohurs for each hearing in this Court.

Teunon, J.

22. This is an appeal under Article 15 of the Letters Patent against the decision of Mr. Justice Nalini Ranjan Chatterjea.

23. By his decision he sets aside an order of the District Judge of Dinajpur and remands the case in which the order was made for re-hearing.

24. A preliminary objection was taken that against the decision of Mr. Justice Chatterjea no further appeal lay under Article 15 of the Letters Patent. On this point I agree with the decision of this Court in Chandi Charan Saha v. Jnanendranath Bhattacharjee 41 Ind. Cas. 250 : 21 C.W.N. 921 (though that was an appeal against a judgment in second appeal) and, therefore, this objection in ray opinion, cannot be sustained.

25. The appeal arises out of an application made by the judgment-debtor under the provisions of the Code of Civil Procedure, Order XXI, Rule 90, for the setting aside of a sale in execution.

26. The property sold was the judgment-debtor's 2/3rd share in a certain Patni Taluk. The trial Court held that in the sale proclamation the value of the property had been deliberately underestimated, that the sale proclamation had not been duly published and that by reason of these irregularities or frauds an adequate price had not been realised.

27. Against the order setting aside the sale on the grounds just stated the auction-purchaser appealed. The District Judge at the hearing of the appeal came to no clear finding as to the publication of the sale proclamation, held that the statement of value (Its. 600) though a gross mis-statement was not calculated to deter possible bidders and that the price fetched at the sale (Rs. 2,755) was not seriously inadequate. He, therefore, decreed the appeal.

28. Against this decision there was an application in revision to this Court. At the hearing of the Rule then obtained it was contended that the District Judge had failed to value the property sold, namely, judgment-debtor's 2/3rd share in a certain Patni Taluk.

29. His judgment in fact makes it apparent that he conceived that he was required to value a 1/3rd share. Moreover, his judgment indicates that he has fallen into a further error regarding the area, that is, he appears to think that the judgment-debtor's statement of area, 600 bighas, applies not to his own share" (2/3rds) but to the whole Patni of which the Judge, therefore, proceeds to value 1/3rd, i. e., 200 bighas. The learned Judges who heard the Rule differed, Mr. Justice Mullick, who has himself apparently misapprehended the District Judge's statement regarding area, holding that the error committed by the District Judge did not bring the case within the scope of Section 115 of the Code, while the Senior Judge, Mr. Justice Chatterjea, was of opinion that under Section 115 of the Code, and also under section 15 of the charter act, the Court could and should interfere.

30. Against the latter's decision the present appeal has been preferred by the auction-purchaser.

31. At the hearing before us, it has been contended on behalf of the appellant that the error into which the District Judge has fallen is merely one of those erroneous decisions or sad mistakes" to which the case of Amir Hassan Khan v. Sheo Baksh Singh 11 C. 6 : 11 I.A. 237 : 4 Sar. P.C.J. 559 : Reriqyue & Jackson's P.C. No. 83 : 5 Ind. Dec. (N.S.) 760. decided by their Lordships of the Judicial Committee, and the case of Shew Prosad Bungshidhur v. Ram Chunder Haribux 23 Ind. Cas. 977 : 41 C. 323 at. p. 338 should be held to apply.

32. To this contention I am unable to assent.

33. It may be that if the parties had been in dispute as to the judgment-debtor's interest in the Patni and if, however erroneously, the District Judge had decided that his interest was not 2/3rds, but 1/3rd (and the area not 600 bighas but 200 bighas), this would have been merely an erroneous decision on a question of fact with which, acting under Section 115 of the Code, we could not and should not interfere.

34. But the case here appears to me to be different. The property sold was clearly specified in the sale proclamation as the judgment-debtor's 2/3rd share. As to the extent of the judgment-debtors' interest there was no dispute between the parties. Specified shares are distinct entities. It is the duty of a Judge to decide secundum allegata et probata. Instead of doing so, the learned Judge here has set himself to value not the property sold but an entirely different property and on his finding as to the value of this different or imaginary property he has declined to set aside the sale of the judgment-debtor's property valued by the judgment-debtor at more than double the price realised.

35. By way of analogy merely, I should refer, in support of the view I take to two cases decided by the Bombay High Court and reported as Gorakh Babaji v. Vithal Narayan Joshi 11 B. 435 : 6 Ind. Dec. (N.S.) 285 and in Venkubai v. Lakshman Venkoba Khot 12 B. 617 : 13 Ind. Jur. 270 : 6 Ind. Dec. (N.S.) 895.

36. For these reasons and differing with all respect from my learned colleagues I am of opinion that the present appeal should be dismissed with costs.

Walmsley, J.

37. This appeal is against an order passed by Mr. Justice Chatterjea on an application made by the present respondent.

38. The circumstances are as follows: The respondent's landlord obtained a decree for rent against him, and in execution of that decree he caused respondent's share in a Patni Taluk to be put up for sale. The share was two-thirds of the Taluk. In the sale, the share was bought by the owner of the remaining one-third share. Subsequently the respondent applied to have the sale set aside, and this application was granted by the Munsif. Then the auction-purchaser preferred an appeal, and the order setting aside the sale was reversed and the sale was confirmed. Thereupon the judgment-debtor preferred a motion in this Court, a Rule was issued, and in due course the Rule came on for hearing before Mr. Justice Chatterjea and Mr. Justice Mullick. The former held that the case was one in which it was right to interfere and directed that the appeal should be heard again by the District Judge. The latter, however, was of opinion that the circumstances were not such as to bring the case within the scope of Section 115 of the Civil Procedure Code. The auction-purchaser has lodged this appeal against Mr. Justice Chatterjea's order directing that the appeal should be re-heard.

39. A preliminary objection was taken at the hearing by the learned Pleader for the respondent, to the effect that no appeal lay, and he referred to the case of the Justices of the Peace for Calcutta v. Oriental Gas Company 8 B.L.R. 433 at. p. 452 : 17 W.R. 364. I do not think that that case supports his argument. The learned Chief Justice said there:

"We think that 'judgment' in Clause 15 means a decision which affects the merits of the question between the parties by determining some right or liability."

Applying that definition to Mr. Justice Chatterjea's judgment, it is clear that it affects the merits of the question in a very material degree. The effect of the decision by the lower Appellate Court was to confirm the sale, but by Mr. Justice Chatterjea's order the Munsif's order setting aside the sale is restored, until the auction-purchaser has convinced the District Judge at a second hearing of the appeal that it ought to be reversed. I hold, therefore, that the preliminary objection cannot be sustained and that the appeal does lie.

40. For the appellant it is urged that the reasons given by Mr. Justice Chatterjea cannot be brought within any of the clauses of Section 115, Civil Procedure Code. It is clear that Clauses (a) and (6) have no application. Can it be said that the learned District Judge "acted in the exercise of his jurisdiction illegally or with material irregularity?" The learned Pleader for the respondent says that because the lower Appellate Court treated the property as being one-third of the Taluk instead of two-thirds, there was no proper trial of the case. He stated this argument in several ways; that the learned Judge did not apply his mind to the case really before him; that he decided a case about the one-third share and not about the two-thirds share; that he did not try the judgment-debtor's case at all. Stated in any form, the argument is, if I may use the epithet without offence, nothing but a specious way of saying that the learned Judge made a very serious mistake, regarding the extent of the interest which had been sold. A mistake of fact, however, and a wrong decision based on it, do not constitute illegality or irregularity. I think this view is in accordance with a recent decision of this Court Shew Prosad Bungshidhur v. Ram Chunder Haribux 23 Ind. Cas. 977 : 41 C. 323 at. p. 338 and with a decision by their Lordships of the Privy Council Amir Hassan Khan v. Sheo Bakhsh Singh 11 C. 6 : 11 I.A. 237 : 4 Sar. P.C.J. 559 : Reriqyue & Jackson's P.C. No. 83 : 5 Ind. Dec. (N.S.) 760. In my opinion, therefore, the present case does not come within the scope of Section 115, Civil Procedure Code.

41. For the respondent it is urged that if he cannot obtain relief under Section 115, Civil Procedure Code, at any rate the provisions of Section 15 of the High Courts Act are wide enough to cover his case. Attempts are often made to put an elastic interpretation upon the word 'superintendence.' Personally I think the word should be construed very narrowly. It is not necessary, however, to consider what meaning should be given to it, for there is one fact in the present case which prevents the respondent from asking us to go beyond the provisions of the Civil Procedure Code. That fact is his failure to apply to the lower Appellate Court for a review of judgment. It is clear that the respondent was aggrieved by a mistake apparent on the face of the record", and if he had made a proper application under Order XLVII he would, doubtless, have obtained relief.

42. Although I share Mr. Justice Chatterjea's sympathy for the judgment-debtor, I think we cannot uphold his order. In my opinion the appeal should be allowed, the order directing the appeal to be re-heard by the District Judge should be set aside, and the Rule obtained by the judgment-debtor should be discharged. I, therefore, concur in the orders of the learned Chief Justice.