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Case Number

Rule No. 158 of 1926

Attorney(S)

Dr. Dwarka Nath Mitter and Babu Haradhan Chatterjee for the Petitioner.
Babu Hira Lal Chucherbutty for the Opposite Party.

Judges

Cuming
Page, JJ.

Acts

sec. 107 of the Government of India Act).
sec. 107, Government of India Act.

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Smart Summary

Judgment Summary

Factual and Procedural Background

The petitioner instituted a suit on the Original Side of the High Court on 27 November 1922 for Rs. 52,582 (odd). On 25 June 1923 the petitioner applied for attachment before judgment of certain properties (apparently in the District of Nadia). Those properties were attached on 12 July 1923. The suit was decreed on 18 February 1924 and no appeal was taken. The decree was sent for execution to the District Judge at Nadia and the property was advertised for sale on 8 February 1926.

On 26 January 1926 a claim under Order 21, Rule 58 was filed in the executing Court by one Bhagwan Das, alleging the property belonged to him. The petitioner objected, contending the Nadia Court had no jurisdiction to entertain the claim. The Subordinate Judge (Nadia) held he had jurisdiction and ordered the parties to produce evidence and set the claim case for trial. The petitioner then obtained a Rule from the High Court under section 115 of the Civil Procedure Code challenging that interlocutory order.

Legal Issues Presented

Whether the High Court has jurisdiction under section 115, Civil Procedure Code, to revise an interlocutory order passed by a Subordinate Court (specifically, an order by the Subordinate Judge holding he has jurisdiction to try a claim under Order 21, Rule 58).
If the High Court has jurisdiction under section 115 to revise such an interlocutory order, whether the High Court ought in the exercise of its discretion to interfere with the particular order in this case.

Arguments of the Parties

Petitioner

The petitioner obtained a Rule under section 115, C.P.C., challenging the Subordinate Judge's order that he had jurisdiction to entertain the claim under Order 21, Rule 58. The petitioner's objection in the executing Court was that the Nadia Court had no jurisdiction to entertain the application/claim.

Opposite Party

The opposite party contended that the order in question is an interlocutory order and that interlocutory orders cannot be dealt with under section 115, C.P.C.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Motilal v. Rana	Cited as authority (from Bombay High Court) that section 115 has no application to interlocutory orders.	Used by Cuming, J. as part of authorities (Bombay, Allahabad, Madras High Courts) supporting the view that sec.115 does not apply to interlocutory orders.
Harsaran v. Muhammad Baza	Cited as authority (from Allahabad High Court) that section 115 has no application to interlocutory orders.	Applied by Cuming, J. among authorities supporting the non-applicability of sec.115 to interlocutory orders.
In re Nizam of Hyderabad	Cited as authority (from Madras High Court) that section 115 has no application to interlocutory orders.	Referenced by Cuming, J. to support his textual/constructional view of sec.115; also mentioned by Page, J. among authorities sometimes cited against revision of interlocutory orders.
Dhapi v. Rampershad (Dhapi v. Ram Pershad)	Held (per Morris, J.) that the word “case” in sec.622 (now sec.115) is wide enough to include interlocutory orders; “record of any case” includes proceedings relating to an interlocutory order.	Cited by Cuming, J. as a contrary decision; cited by Page, J. among authorities holding that the High Court has jurisdiction under sec.115 to revise interlocutory orders.
Chandi Ray v. Kripal Ray (Chardi/Chandi Ray)	Per Woodroffe, J.: expressed doubt whether interlocutory orders come within scope of sec.115; the matter was not decided because the judge relied on existence of another adequate remedy.	Cited by Cuming, J. (Woodroffe's remark) and by Page, J. as authority showing doubt in some decisions; used to illustrate conflicting authorities and the availability of alternative remedies.
Gobinda Mohan Das v. Kunja Behary Dass	Held by Mookerjee, J. that if an interlocutory order is made without jurisdiction or in circumstances likely to cause irreparable injury, the High Court could set it aside under cl.15 of the Charter (now sec.107 Government of India Act); the judge did not decide applicability of sec.115.	Referred to by Cuming, J. and Page, J.; Cuming, J. notes Mookerjee, J. refused to consider sec.115 and relied on a Charter provision; Page, J. includes it among authorities supporting revision jurisdiction or emergency relief where irreparable injury is shown.
Amjad Ali v. Ali Hossein	Mookerjee, J. applied the test of whether irreparable injury would be caused if the matter were not set right, operating under the Charter provision corresponding to sec.107 GIA rather than sec.115.	Cited by Cuming, J. as setting a limited test (irreparable injury) and used by him to decide the present case: finding no irreparable injury, he declined interference. Page, J. also refers to irreparable injury as the circumstance that would justify intervention.
Buddhu Lal v. Mewa Ram	Cited (by Page, J.) as authority supporting the contention that interlocutory orders do not fall within sec.115 (i.e., argument against revision jurisdiction).	Included by Page, J. among earlier decisions showing opposing views; he acknowledges there is some authority for the contention but finds subsequent Court of Record authority settled otherwise.
Bai Rani v. Jaga Dullabh	Cited (by Page, J.) as authority in favour of the contention that interlocutory orders may not fall within sec.115.	Listed by Page, J. as part of the body of earlier conflicting authority; ultimately Page, J. holds the matter to be settled in favour of jurisdiction under sec.115 in this Court.
Siva Prasad Ram v. Tricomdas Cooverji Bhoja	Cited by Page, J. as authority supporting the High Court's jurisdiction under sec.115 to revise interlocutory orders.	Used by Page, J. to show the line of decisions in this Court accepting revision jurisdiction under sec.115 over interlocutory orders.
Sarajubala Debi v. Mohini Mohan Ghose	Cited by Page, J. among authorities upholding revision jurisdiction under sec.115.	Relied on by Page, J. to demonstrate settled practice in this Court that sec.115 can extend to interlocutory orders of Subordinate Courts.
Secretary of State for India v. Narsibhai Dadabhai	Cited by Page, J. as another decision supporting revision jurisdiction.	Included by Page, J. in the list of authorities confirming that the High Court has jurisdiction under sec.115 over interlocutory orders.
Somasundaram v. Manicka	Cited by Page, J. as authority consistent with revision jurisdiction under sec.115.	Used by Page, J. to show the weight of authority in this Court favouring the exercise of revision over interlocutory orders.
Jagannatha v. Sarathambal	Cited by Page, J. among decisions establishing the High Court's revision jurisdiction under sec.115.	Counted by Page, J. in the authorities that, in his view, conclude the matter in favour of jurisdiction.
Nauratan Lal v. W.J. Stephenson	Cited by Page, J. as authority supporting revision jurisdiction under sec.115.	Included in Page, J.'s list of cases settling the law that sec.115 can be used to revise interlocutory orders of Subordinate Courts.
Bolla Ram v. Mt. Ray	Cited by Page, J. among authorities affirming the High Court's power of revision under sec.115.	Used by Page, J. to evidence the established view in this Court that sec.115 jurisdiction extends to interlocutory orders.
Bai Atiani v. Deepsing	Cited by Page, J. for the principle that the powers of revision entrusted to the Court should not be restricted.	Page, J. invoked this authority when explaining his reluctance to limit the Court's revision jurisdiction.

Court's Reasoning and Analysis

The opinion contains two principal judicial treatments of the question: the reasoning of Cuming, J. and the reasoning of Page, J. Both reach the same practical result (the Rule is discharged) but they approach the legal question differently.

Cuming, J. — Textual and Practical Construction (No Application of sec.115 to Interlocutory Orders)

Textual analysis: Cuming, J. focuses on the plain wording of section 115 (then section 622) which empowers the High Court to "call for the record of any case which has been decided ... and in which no appeal lies thereto." He reasons that the phrase "a case which has been decided" must mean the whole case, not a part or an interlocutory order.
Analogy and practical point: He rejects the notion that "case" could mean a single issue or interlocutory order (which would render the section incoherent — "The High Court may call for the record of any issue which has been decided by any Court"). He adds a practicability argument: allowing revision of interlocutory orders would lead to simultaneous and duplicative litigation in two courts, a cumbersome and expensive process.
Authority: He cites decisions from the High Courts of Bombay, Allahabad and Madras (Motilal v. Rana; Harsaran v. Muhammad Baza; In re Nizam of Hyderabad) as supportive of his construction.
Consideration of contrary decisions: He reviews contrary decisions from this Court (e.g., Dhapi v. Rampershad) and a line of cases where Justice Mookerjee applied a remedy under Charter provisions (sec.107 G.I.A.) where irreparable injury was shown. Cuming, J. accepts the limited test of irreparable injury (as applied in Amjad Ali) for present purposes but finds no irreparable injury here.
Conclusion on merits and remedy: Applying the irreparable-injury test, he finds no ground for interference: the petitioner has suffered no irreparable injury and may even ultimately succeed in the claim case. Moreover, the petitioner has another adequate remedy (a suit) if he is ultimately unsuccessful. For these reasons, he holds sec.115 has no application to interlocutory orders and that interference is not warranted; he orders the Rule discharged with costs (hearing-fee five gold mohurs).

Page, J. — Precedent-Focused and Discretionary Approach (Jurisdiction Exists but Not Exercised)

Framing of issues: Page, J. explicitly states the two central questions: (1) whether the High Court has jurisdiction under sec.115 to revise the complained-of order, and (2) if so, whether the Court should exercise its discretion to interfere.
On jurisdiction: Although acknowledging authority and argument that sec.115 is limited to "cases which have been decided" and thus may not extend to interlocutory orders, Page, J. concludes that in this Court the position is "well-settled" that the High Court has jurisdiction under sec.115 to revise interlocutory orders passed by Subordinate Courts from which no appeal lies. He cites a substantial line of decisions of this Court that he considers to settle the matter in favour of such jurisdiction (including Dhapi v. Ram Pershad, Gobinda Mohan v. Kunja Behary, and numerous others).
On exercise of discretion: Even accepting jurisdiction, Page, J. evaluates the appropriateness of intervention in the present circumstances. He finds the Rule premature — the claim case in the executing Court may be dismissed — and misconceived because, if the claimant is ultimately successful, the petitioner could challenge title in a separate suit (Order 21, Rule 63). He states the guiding principle: the High Court should intervene in current litigation by revising an interlocutory order only when irremediable injury would be done or a miscarriage of justice would inevitably ensue if it does not act. That standard is not met here.
Conclusion: Page, J. therefore exercises his discretion to refuse to interfere and orders the Rule discharged with costs.

Holding and Implications

Holding (practical outcome): The Rule obtained by the petitioner is DISCHARGED with costs. The hearing-fee of five gold mohurs is mentioned as part of the costs order.

Judicial positions on the legal rule: The judgment records two distinct judicial conclusions regarding the legal reach of section 115:

Cuming, J. concluded that section 115, C.P.C. (then sec.622) has no application to interlocutory orders and that the High Court cannot use sec.115 to revise such interlocutory orders; he also found, on the facts, no ground for interference under ancillary principles (no irreparable injury, adequate alternate remedy).
Page, J. concluded that this Court's precedents establish that the High Court does have jurisdiction under section 115 to revise interlocutory orders of Subordinate Courts; however, Page, J. exercised his discretion not to interfere in the present case because the petition was premature and no irremediable injury would result if the claim case proceeded.

Immediate consequences for the parties: The petitioner's Rule is dismissed and the petitioner is ordered to pay costs (including the hearing-fee of five gold mohurs). The executing Court's order that it had jurisdiction to try the claim remains in place for the time being.

Note: The opinion contains differing views on the legal question whether sec.115 extends to interlocutory orders; both views are recorded and both judges reached the same procedural result (discharge of the Rule) on the facts before them.

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Salam Chand Kanny Ram v. Bhagwan Das Chilhania Opposite Party.

The Judgment of the Court was as follows:—

Cuming, J.:— The facts of the case out of which this Rule has arisen are these: The Petitioner who obtained the Rule brought a suit on the Original Side of this Court against the Opposite Party for Rs. 52,582 odd on the 27th November 1922. On the 25th June 1923 he applied that certain properties of the Opposite Party might be attached before judgment. These properties were apparently in the District of Nadia though that is not stated in the petition where the facts are set out very incompletely. The properties were duly attached on the 12th July 1923. The suit was decreed on the 18th February 1924. There was no appeal. Then on the same date, which again it is impossible to ascertain either from the petition or from the learned Counsel who has appeared for the Petitioner, the decree was sent to the District Judge at Nadia for execution and the property was advertised for sale on the 8th February 1926.

A claim was then filed in the executing Court on the 26th January 1926 by one Bhagwan Das alleging that the property belonged to him. The Petitioner then appeared and objected that the Nadia Court had no jurisdiction to entertain the claim.

That Court held that he had the jurisdiction to entertain the application and ordered the parties to produce their evidence.

Against this order of the learned Subordinate Judge the Petitioner has moved this Court under sec. 115 and obtained this Rule. It has been contended by the Opposite Party that the order being an interlocutory order cannot be dealt with under sec. 115.

Speaking for myself and with great respect to the learned Judges who have held otherwise I have no hesitation in holding that sec. 115, C.P.C, has no application whatever to interlocutory orders. Let us take the plain words of the sec. 115, the material portion of which runs as follows:—

“The High Court may call for the record of any case which has been decided …. and in which no appeal lies thereto.” The expression thus used is the record of a case which has been decided. The only meaning which I can attach to the expression “a case which has been decided” is the whole case.

If we are to suppose that the expression “case” means or includes, for instance, one issue in the case, then the section would run as follows:—

“The High Court may call for the record of any issue which has been decided by any Court.”

It is perhaps difficult to say where the record of an issue that had been decided would be found. I have not myself the slightest doubt but that the legislature where it speaks of the case that had been decided meant the whole case which so far as the Court dealing with it was concerned had been finally dealt with.

I can conceive of the High Court sending for the record of the case. I cannot conceive of its sending for the record of an issue. The words seem perfectly plain. To decide a case is to decide the whole case and not to decide a part of the case. I am therefore of opinion that sec. 115 has no application to interlocutory orders.

This is the view which has commended itself to the High Courts of Bombay, Allahabad and Madras. Motilal v. Rana (1), Harsaran v. Muhammad Baza (2) and In re Nizam of Hyderabad (3).

The reason seems self-evident. To allow revision of interlocutory orders would have at once the effect of two Courts trying more or less simultaneously the same suit a cumbersome and expensive procedure. For if one interlocutory order can be dealt with under sec. 115, every interlocutory order can be the subject of an application under sec. 115. Our attention has, however, been drawn to a number of decisions of this Court which apparently hold the contrary view.

I think I should now consider the present case in the light of those decisions. The earliest case I have been referred to is the case of Dhapi v. Rampershad (4). Mr. Justice Morris in disposing of this case held that the word case in sec. 622, C.P.C (now sec. 115) is wide enough to include an interlocutory order and the words record of any case include so much of the proceedings in any suit as relate to interlocutory order. The learned Judge in coming to the conclusion referred to a number of cases in which a contrary view was taken.

Mr. Justice Tottenham concurred in making the Rule absolute but he seemed to doubt whether the matter could be dealt with under sec. 622 (now sec. 115).

The next case to which I have been referred is the case of Chandi Ray v. Kripal Ray (5). Mr. Justice Woodroffe in dealing with that case referred to the case of Dhapi v. Ram Pershad and remarked:—

“Speaking for myself, I should have thought that interlocutory orders did not come within the scope of this section. It is unnecessary to decide the point for reasons with which I shall deal later on.”

The learned Judge refused to interfere on the ground that there was another and adequate remedy open to the Petitioner.

We are then referred to the case of Gobinda Mohan Das v. Kunja Behary Dass (6), where Mr. Justice Mookerjee held that if the Court is satisfied that an interlocutory order has been made without jurisdiction or under circumstances, that are likely to cause irreparable injury to one of the litigants, the High Court could set it aside under sec. 15 of the Chartpr (now sec. 107 of the Government of India Act). The learned Judge refused to consider the point as to whether it could come under sec. 115, C.P.C

I have next been referred to the case of Amjad Ali v. Ali Hossein (7). There the same learned Judge Mr. Justice Mookerjee relied on apparently the case of Gobinda Mohan v. Kunja Behary and stated that it was pointed out in that case that the test to be applied was whether irreparable injury would be caused to one of the litigants if the matter was not set right.

The learned Judge apparently dealt with the matter under cl. 15 of the Charter which corresponds to sec. 107, Government of India Act. It will be noted that the test the learned Judge would here apply in that case is more limited than the test the same learned Judge applied in the case of Gobinda Mohan v. Kunja Behary . Whether sec. 107 of the Government of India Act has any application it is not necessary to discuss. Speaking for myself and with great respect to the learned Judge I do not think it has. It is sufficient for the decision of the present Rule to accept the test as laid down in Amjad Ali v. Ali Hossain . Applying it to the present case there is no ground whatever for interference. The Petitioner by the order of the learned Judge holding he has jurisdiction to determine the matter has suffered no irreparable injury. In fact lie has suffered no injury at all, for it is quite possible that the Judge may decide the claim case ultimately in his favour.

There is a further reason for not interfering. Even if ultimately unsuccessful in his claim case the Plaintiff has a further and adequate remedy for he can bring a suit. This Court does not interfere as a general rule in revision where the aggrieved party has another and adequate remedy.

The result is this Rule must be discharged with costs. Hearing-fee, 5 gold mohurs.

Page, J.:— On the 27th November 1922, the Petitioner instituted a suit on the Original Side of the High Court against a firm trading under the name and style of Jugal Kishore Ramdeo for the recovery of Rs. 52,582-11-9, the price of goods sold and delivered. On the 12th July 1923, Greaves, J., passed an order for the attachment before judgment of the properties in dispute, and pursuant thereto the said properties were attached. On the 18th February 1924, Buckland, J., decreed the Plaintiff's claim in the suit, and from that decree no appeal has been preferred. Subsequently the decree was transferred for execution to the Court of the District Judge of Nadia, and in execution of the decree a sale of the property was fixed for the 8th February 1926. On the 26th January 1926 the Opposite Party preferred a claim to the property under Or. 21, r. 58. Thereupon, the Petitioner filed an objection to the Opposite Party's claim, inter alia, upon the ground that the Court had no jurisdiction to entertain the application. The Subordinate Judge of Nadia, having heard the parties, on the 8th February 1926 decided that the Court of Nadia had jurisdiction to entertain the Opposite Party's application under Or. 21, r. 58, and ordered notices to be served upon the parties that the claim case would be tried on the merits on the 13th February 1926. The decree-holder has now obtained this Rule under sec. 115 of the Civil Procedure Code.

The questions which fall for determination are: (1) Has the Court jurisdiction under sec. 115 to revise the order of which complaint is made, and (2) if the Court is competent to do so, ought the Court in the exercise of its discretion to interfere with the said order?

Now, the order under consideration, although not subject to appeal, is an interlocutory order, and it has strenuously been argued before us that inasmuch as the Court is entitled to exercise its power of revision under sec. 115, C.P.C, only in respect of a “case which has been decided,” the Court is not empowered to revise an interlocutory order which ex concessis does not determine the rights of the parties. Indeed, it is alleged that so far from the case having been decided it has not yet even been heard, and, therefore, under sec. 115 the Court has no jurisdiction to entertain the present Rule.

There is, I think, force in this contention and some authority in its favour: Buddhu Lal v. Mewa Ram (8), Bai Rani v. Jaga Dullabh (9) and In re Nizam of Hyderabad and per Woodroffe, J., in Chardi Ray v. Kripal Ray ; but the matter is not res Integra and it is now well-settled, at any rate in this Court, that the High Court has jurisdiction under sec. 115 to revise interlocutory orders passed by Subordinate Courts from which no appeal lies to the High Court; see Dhapi v. Ram Pershad , Gobinda Mohan v. Kunja Behary , Siva Prasad Ram v. Tricomdas Cooverji Bhoja (10), Sarajubala Debi v. Mohini Mohan Ghose (11), Secretary of State for India v. Narsibhai Dadabhai (12), Somasundaram v. Manicka (13), Jagannatha v. Sara thambal (14), Nauratan Lal v. W.J Stephenson (15) and Bolla Ram v. Mt. Ray (16). In my opinion, the matter is concluded by authority. I am the less disposed to re-agitate the question or to cavil at the law as it now stands, because I deem it to be of great importance that the powers of revision with which the Court is entrusted should not be restricted; see Bai Atiani v. Deepsing (17); and even if I were not of this opinion very cogent arguments would have to be forthcoming to induce me to acquiesce in any limitation of the Court's authority. Est boni judicio ampliare jurisdictionem.

The second question then arises, namely, are the circumstances of this case such that the Court in the exercise of its discretion ought at this stage in the proceedings to intervene in the claim case, and to revise the order in dispute? In my opinion, clearly not. The present Rule appears to me to be premature, for it may be that in the event the claim case will be dismissed; and it is also misconceived, for if the claim of the Opposite Party is allowed, it would be open to the Petitioner to challenge the title of the successful claimant in a separate suit (Or. 21, r. 63); and, in my opinion, it is only when irremediable injury will be done, and a miscarriage of justice inevitably will ensue if the Court holds its hand, that the Court ought to intervene in current litigation and disturb the normal progress of a case by revising an interlocutory order that has been passed by a Subordinate Court.

For these reasons, in my opinion, this Rule is misconceived, and should be discharged with costs.

Salam Chand Kanny Ram v. Bhagwan Das Chilhania Opposite Party.

Judgment Summary

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner

Opposite Party

Table of Precedents Cited

Court's Reasoning and Analysis

Cuming, J. — Textual and Practical Construction (No Application of sec.115 to Interlocutory Orders)

Page, J. — Precedent-Focused and Discretionary Approach (Jurisdiction Exists but Not Exercised)

Holding and Implications

Salam Chand Kanny Ram v. Bhagwan Das Chilhania Opposite Party.

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