1. The plaintiff is the appellant. He owned a house which had been usufructuarily mortgaged to the second defendant for a sum of Rs. 170. A suit for the recovery of a money debt was filed by the first defendant against the plaintiff in the Panchayat Court of Cumbum and a decree was obtained. The decree was transferred for execution to the District Munsiff's Court of Markapur as the house belonging to the judgment-debtor was situated within the territorial jurisdiction of that Court. In the execution sale held on the 16th October, 1942, in E. P. No. 28 of 1942 the mortgagee second defendant purchased the house subject to his own mortgage for a sum of Rs. 155. The plaintiff thereupon brought the suit out of which this appeal arises to set aside that Court sale on the ground that the decree was obtained by fraud and that there was also fraud in connection with the sale proceedings. The fraud that was alleged in connection with the decree was that although she had permanently left Cumbum and was residing in Markapur, the suit was filed in the Panchayat Court at Cumbum which had no jurisdiction to entertain the suit against her. With regard to the sale, the fraud that was alleged was that there had been an understanding between the first defendant and the plaintiff that the former should receive from the latter a sum of Rs. 50 in full satisfaction of the decree and it was in pursuance of that understanding that an application was made jointly by both to the Court on the 17th August, 1942, to which date E. P. No. 28 of 1942, had originally stood posted, to adjourn the sale for a period of two months in order to enable her to pay the said sum. The plaintiff's contention is that sometime prior to the 16th October, 1942, to which date the sale was posted the plaintiff paid a certain portion of the agreed sum to the first defendant and the first defendant agreed to give her some further time for the payment of the balance. He also undertook to see that the sale did not come off on the 16th October, 1942. Depending upon that assurance she did not attend the Court on the 16th October, 1942, and on that day the second defendant in collusion with the first defendant purchased the property in the Court auction which was held for Rs. 155 subject to his mortgage, and the sale was subsequently confirmed by the Court. She contends that the house is actually worth Rs. 600 and the sale was brought about as a result of fraudulent collusion between the two defendants against her. The first defendant in his written statement supported the plaintiff's case and stated that he had given a letter to the second defendant on the 15th October, 1942, to be delivered to his pleader to obtain a further adjournment of the sale and that that letter was fraudulently suppressed by the second defendant who, knowing all the circumstances, fraudulently purchased the property in his own name. The second defendant denied all these allegations and stated that there was no fraud either in connection with the decree or in connection with the sale. He alleged that there was collusion between the plaintiff and the first defendant and he also contended that the suit was not maintainable. Several issues were framed concerning the allegations of fraud and material irregularity with reference to the sale and concerning its legality. The third issue which was in the following effect: Whether the suit to set aside the execution sale is maintainable in law " was tried by the trial Court as a preliminary issue and it was held that Order 21, Rule 92(3) of the Civil Procedure Code was a bar to the suit and that consequently it was not maintainable. The suit was dismissed by the trial Court and the learned District Judge on appeal agreed with the view taken by the trial Court, and hence this appeal.
2. The first objection with regard to the maintainability of the suit is based upon the bar provided in Sub-rule (3) of Order 21, Rule 92. Rule 90 provides for an application to set aside an execution sale on grounds of irregularity or fraud. Sub-rule (1) of Rule 92 provides inter alia that where no application has-been made under Order 21, Rule 90, the Court shall make an order confirming the sale and thereupon the sale shall become absolute, and Sub-rule (3) provides,
" No suit to set aside an order made under this rule shall be brought by any person against whom such order is made."
In the present case, admittedly, no application was made under
Order 21, Rule 90 and hence it is contended that
Sub-rule (3) precludes the institution of a suit to set aside an order made under Rule 92(1) confirming the sale. Before dealing with this question, I have to take note of the fact that in the course of the appeal before the learned District Judge it seems to have been conceded on behalf of the plaintiff that
Order 21, Rule 92(3) is a bar to the maintainability of the present suit and hence the learned Judge did not feel called upon to examine that question in any detail although at the end of his judgment he stated that on the facts he agreed with the learned District Munsiff that the suit was not maintainable in view of the
provisions of Order 21, Rule 92. Mr. Appa Rao is not making any such admission in this appeal, and being a question of law he contends that it is open to him to say that the admission made by the learned advocate for the plaintiff in the lower appellate Court is erroneous in law and is not binding. His argument is that it is only where there is an allegation of material irregularity or fraud in publishing or conducting a sale that
Order 21, Rules 90 and 92 would come in for application. But where the allegation of fraud relates to a matter which has nothing to do with the publication or conduct of a sale the bar provided by Rule 92(3) does not arise. The contention has to my mind to be upheld. The question whether the sale was brought about by the fraud of the decree-holder, the auction purchaser and others and the question whether the decree itself was obtained by fraud are matters outside the scope of
Order 21, Rule 90.
Vide Khagendranath Mahata v. Pran Nath Roy (
1902) L.R. 29 L.A. 99 :
I.L.R. 29 Cal 395 (P.C.) and
Bhagwan Das Marwari v. Suraj Prasad Singh (
1924) I.L.R. 47 All. 217. The learned District Judge has in this connection particularly referred to the conduct of the plaintiff in acquiescing in the decree which she is deemed to have done by reason of the joint application made by her on the 17th August, 1942, for the adjournment of the sale on the same proclamation. If it is treated as a matter from which some sort of estoppel arises, then there should be a specific pleading with regard to that matter and on a properly raised issue the plea will have to be investigated as one of fact. From the mere circumstance that the plaintiff was a party to an application for an adjournment of the sale, an inference cannot be drawn that she acquiesced in the correctness and validity and the binding nature of the entire decree. Her own case is that she made the application because, even though the decree was obtained by fraud, she was willing to settle the matter at a sum of Rs. 50 in full satisfaction and that the first defendant had agreed to the same, but after having done so and having obtained from her a portion of the amount he colluded with the second defendant and made her keep away from the sale with the result that the second defendant purchased the entire property for a grossly low price. That case has not been investigated at all, and without doing so, to infer from the mere filing of the application that she had acquiesced in the validity and legality of the decree is, to say the least, unreasonable and unjust. That question will therefore have to be left open for being duly tried in the course of the trial of the suit.
3. Although the second ground upon which the learned District Judge has based his judgment was not raised at the trial stage before the District Munsiff, the learned District Judge has examined the case from a new and different standpoint. He held on a scrutiny of the provisions of the Madras Village Courts Act that the suit itself would not lie in a Civil Court in view of the provisions of Section 73 of that Act. Section 73 of the Village Courts Act provides for the revision by the District Munsiff in certain cases of the proceedings of a Village Court. In cases where the Panchayat Court has exercised jurisdiction not vested in it by law or otherwise acted illegally or with material irregularity the District Munsiff, may, on a petition being presented within sixty days from the date of the decree by the aggrieved party, set aside such a decree. Then comes the following provision in that section: except as provided in this section, every decree or order of a Village Court shall be final." The learned District Judge points out that no such petition having been filed to revise the decree before the District Munsiff within sixty days, it was not open to her to file a suit in the District Munsiff's Court to set aside the decree. This raises an important question, viz., whether a provision in a statute of this kind has the effect of ousting the jurisdiction of a Civil Court and making the decree of the Panchayat Court final in the sense that no remedy is available in any other forum. The learned District Judge has not examined the question but was content with acting upon his reading of the bare Section 73 of the Village Courts Act without regard to the scheme of the entire enactment. That scheme and the effect of the decisions bearing upon the subject however point to a different conclusion. A number of cases have been cited, but it would be sufficient to deal with some of the recent and leading cases touching the question. In Secretary of State for India v. Mask and Co. (1940) 2 M.L.J. 140 : L.R. 67 I.A. 222 : I.L.R. (1940) Mad. 599 (P.C.) a question arose before the Privy Council whether a decision by an Assistant Collector on the duty leviable on imported goods is a decision within the meaning of Section 188 of the Sea Customs Act and whether, when the right of revision therefrom conferred by Section 191 has been exercised and an order under that section was made, the order was final and the jurisdiction of the Civil Court was excluded. Their Lordships held upon a construction of the Act and the various sections thereof that the order in that case had the effect of ousting the jurisdiction of the Civil Courts. The general principle was stated to be that the determination of such a question must rest on the terms of the particular statute which was under consideration and decisions on other statutory provisions were not of material assistance except in so far as the general principles of construction were laid down. Then their Lordships adverted with approval to the well known judgment of Willes, J., in Wolverhampton Mew Water Works v. Hawkesford (1859) 6 C.B. (N.S.) 336, 356 : 141 E.R 486 which was approved by the House of Lords in Neville v. London "Express" Newspapers Ltd. (1919) A.C. 368 With reference to those cases it was pointed out that the question was whether the case before the Privy Council fell under the third class stated by Willes, J., viz., Where the statute creates a liability not existing at common law, and gives also a particular remedy for enforcing it...with respect to that class it has always been held that the party must adopt the form 01 remedy given by the statute.
Their Lordships then proceed to say this:
It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
The same principle has been put by Varadachariar, J., in Kamaraja Pandia JVaicker v. Secretary of State for India in Council (1934) 69 M.L.J. 695 at page 700 in these terms:
The ordinary rule is that where a person's liberty or property is interfered with, under colour of statutory powers, he has a cause of action which the Civil Courts are bound to entertain unless a bar to such entertainment has been enacted expressly or at least by necessary implication. Where there is no question of a common law right and an infringement thereof, the position may be different, for in such cases, the ordinary Courts had prima facie no jurisdiction and therefore there is no question of any ouster of their jurisdiction. Decisions like Bhaishankar v. The Municipal Council, Corporation of Bombay (1907) I.L.R. 31 Bom. 604 and Nataraja Mudaliar v. Municipal Council of Mayuvaram (1911) I.L.R. 36 Mad. 120 : 21 M.L.J 878 fall under this category, where the right or status was itself the creation of the statute. Even where rights of property are involved, the Legislature may point, to particular modes of redress. But in dealing with this class of cases, a distinction has to be borne in mind between the general right of resort to the Civil Court and any particular form of procedure in seeking the aid of the Civil Court. So long as a statute provides for a decision by a Civil Court, it is immaterial, whether the Civil Court is approached by means of a suit or by an appeal or petition. This is the basis of the decision in Ramachandra v. Secretary of State (1886) I.L.R. 12 Mad. 105 as explained in Balwant Ramachandra v. Secretary of State (1905) I.L.R. 29 Bom. 480 at 509. The decision in Ishwarandnda Bharati Swami v. Commissioners, Hindu Religious Endowments Board, Madras (1931) 61 M.L.J. 117 : I.L.R. 54 Mad.928 is also explicable on the same ground.
This decision and the line of reasoning adopted by the learned Judge was approved with particular reference to the Privy Council decision in Secretary of State for India v. Mask and Co. (1940) 2 M.L.J. 140 : L.R. 67 I.A. 222 : 878 I.L.R. (1940) Mad. 599 (P.C.) by a Full Bench of this Court in Secretary of State for India v. Jagannadhan (1941) 2 M.L.J. 47 : I.L.R. 1941 Mad. 850 (F.B.). That was a case that arose under the Surcharge Audit and Disallowance Rules framed under the Madras Local Boards Act, and the question before the Full Bench was whether the Secretary of State was precluded from raising in the High Court the question whether the Civil Court had no jurisdiction to entertain the suit as there was no appeal against the order of remand. The Full Bench held inter alia that in order to exclude the jurisdiction of the Civil Courts the exclusion must be explicitly expressed or clearly implied, and on the facts of the case before the Bench it was found that there was a clear case of implied exclusion of the right to file a suit. A contention was raised by the Government Pleader in that case that the Civil Court had no jurisdiction to entertain the suit relying on Ramachandra v. Secretary of State (1886) I.L.R. 12 Mad. 105 Iswarananda Bharathiswami v. Commissioners, Hindu Religious Endowments Board, Madras (1931) 61 M.L.J. 117 : I.L.R. 54 Mad. 928 Subbayya v. Thippa Reddi (1939) 2 M.L.J. 604 I.L.R. (1940) Mad. 599 and the judgment of the Privy Council in Secretary of State v. Mask and Co. (1940) 2 M.L.J. 140 : L.R. 67 I.A. 222. The learned Judges, after a detailed examination of those cases, refer to the decision of Varadachariar, J., in Kamaraja Pandia Naicker v. Secretary of State for India in Council (1934) 69 M.L.J. 695 and the Privy Council decision in Secretary of State for India v. Mask and Co. (1940) 2 M.L.J. 140 : L.R. 67 I.A. 222 and with reference to the latter say:
There Lord Thankerton in delivering the judgment of the Board said that it is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred. The exclusion must either be explicitly expressed or clearly implied and approval was expressed of the dictum of Willes, J., in Wolverhampton Waterworks Co. v. Hawkesford (1859) 6 C.B. (N.S.) 336 : 141 E.R. 486 that where a statute creates a liability not existing at Common Law, and gives also a particular remedy for enforcing it, the party must adopt the form of remedy given by the statute.
Then the learned Judges summarise the position in these words:
Therefore, we have here two principles clearly established. The first is that, to exclude the Jurisdiction of the Civil Courts, the exclusion must be explicitly expressed or clearly implied. The second is that, where the liability is statutory as opposed to liability under the Common Law, the party must adopt the remedy given to him by the statute. I cannot imagine a clearer case of implied exclusion of the right to file a suit than we have here.
This view was subsequently followed by a Division Bench of this Court recently in Sri Kothandaramaswami Temple v. Veezhinatha Aiyar (1945) 1 M.L.J. 63 : I.L.R. (1945) Mad. 553 which was a case that arose under Section 44 of the Madras Hindu Religious Endowments Act. It was in that case found that Section 44 did not preclude the trustees from filing a suit in a Civil Court and that the section merely permitted the District Judge on an application to order the recovery of the amount charged and that did not in itself mean that the trustee of a temple benefited by the charge was compelled to proceed under that section. The section did not expressly exclude the right of a suit nor could it be read as implying its exclusion.
4. These being the tests and principles laid down in the various decisions, we have to examine the Village Courts Act to see whether by reason of section 73 of that act the jurisdiction of the Civil Courts is excluded with regard to suits or remedies which are ordinarily cognizable by a Village Court. Section 13 lays down the classes of suits of which the Village Courts can take cognizance and of which those Courts cannot take cognizance, and Section 14 lays down the conditions upon which the jurisdiction of the Court arises. We then have Section 20-A which runs thus:
(1) If a suit which is triable by a village Court is instituted in the Court of a District Munsiff, he may, unless sufficient reasons exist to the contrary, transfer it to the village Court.
(2) Where a District Munsiff tries a suit which is triable by a village Court and is of opinion that the suit ought to have been instituted in the village Court, no costs shall be allowed to a successful plaintiff and a successful defendant shall be allowed his costs as between pleader and client.
Then we have Section 73 which provides for a revision by the District Munsiff of any decree made by a Village Court and the provision therein that every decree and order of a Village Court shall be final except as provided in that section. To start with, it has to be pointed out that in this Act there is no express exclusion of the jurisdiction of the Civil Court. Nor is there any provision therein from which it can by necessary implication be inferred that the jurisdiction of the Civil Courts is ousted. On the contrary Section 20-A appears to have the effect of retaining the concurrent jurisdiction of the Civil Courts over the classes of cases which can be taken cognizance of by the Village Courts provided that it is open to the District Munsiff to transfer a case of a particular description of which he has taken competent cognizance, to the concerned Village Court. A kind of penalty has been attached under clause (2) of section 20-a that if a suit triable by a Village Court is tried by the District Munsiff, it is open to him in certain cases to deprive that party who ultimately succeeds of the costs in view of the consideration that the party could have lessened the costs of the other side by instituting the action in the Village Court instead of in a Civil Court. Thus it is clear that the common law remedy is kept alive and that the jurisdiction of the Court is not only not excluded, but by clear implication retained. Further, it is not a case where the obligation is created by the statute, because it is only in cases where the statute itself creates an obligation and provides an exclusive code for its determination that the jurisdiction of the Civil Court can be said to be ousted. Having regard to these considerations I must hold that the view taken by the learned District Judge with reference to Section 73 of the Village Courts Act is not correct. The learned Advocate for the second respondent auction-purchaser drew my attention to the case reported in Ramanatha v. Arunachala (1940) 1 M.L.J. 352 : I.L.R. (1940) Mad. 825 where with reference to Section 43 of the Hindu Religious Endowments Act the scope and meaning of the word " final " fell to be interpreted. It was held that it was final to the extent even of excluding the right of an office holder or a servant of a temple to challenge the decision in a Court of law. The decision proceeds entirely upon the interpretation of that word in the context in which it occurs in other sections of the Act, viz, Sections 53 and 54, and since in those sections the only possible meaning is the meaning that the learned Judges put, it was held that the same meaning should be given to the same word occurring in Section 43. In that case also the rule as enunciated by Varadachariar, J., in Kamaraja Pandia Naicker v. Secretary of State for India in Council (1934) 69 M.L.J. 695 was adverted to. But with reference to the particular language of the provision before them the learned Judges arrived in application of that principle at the result already mentioned. Here the word " final " appearing in Section 73 must be held to mean final so far as the particular Court is concerned in which the decree was passed and cannot be held to extend to the exclusion of the jurisdiction of the ordinary Civil Courts.
5. The result is that this appeal is allowed and the decree of the lower appellate Court is set aside as also the finding of the Courts below on issue 3. That issue is found in favour of the plaintiff. But it must be strictly understood as confined to the two particular objections regarding maintainability that have been examined and decided here. The learned advocate for the second respondent says that he has some other objection to raise on the basis of Section 47 of the Code of Civil Procedure. I do not have the written statement of the second respondent before me. It will be a matter for the trial Court to consider if and when any further objections to the maintainability are raised whether those objections can be entertained and if so to adjudicate the same on their own merits. All other questions in the suit except those decided here are left open. Subject to these directions, the suit is restored to the file of the District Munsiff of Markapur for disposal according to law. The appellant will get his costs in this Court. The costs in the Courts below will abide the result of the suit. The Court fee paid on the memorandum of appeal will be refunded.