Sultan Beg v. Chunilal Maluram Shop

1. The suit out of which this appeal arises was one to enforce a mortgage executed by the three defendants, who are now appellants, on 25th February 1898. The properties mortgaged were at the date of the mortgage under the management of the Collector in execution proceedings taken by one Magniram Tansukrai to realise a decree obtained by him against the appellants. The Additional District Judge, without going into the merits of the case, dismissed the suit on the preliminary ground that the mortgage was taken without the written permission of the Collector and was void under Section 325-A of the CPC 1882. On appeal by the plaintiff it was held by a Bench of this Court that the transfer was not void, and although for want of the Collector's concurrence it was at its inception inoperative, just as in the case of a conveyance by a person with a defective title, it did not necessarily follow that it was open to the transferors to repudiate it when the management of the Collector was over and they were in a position to make good their contract. The question for determination was, in the opinion of the Bench, not so much whether the transfer was void or voidable, but whether, though inoperative, it might not give rise to an equity. The case was on 23rd January 1914 remanded to the 1st Court for a trial on the merits. That Court after trying the case on the merits has on 31st October 1916, decreed the plaintiffs' claim and the present appeal is from that decree. Although a number of grounds were taken in the memorandum of appeal attacking the findings of the first Court on the merits, they have not been pressed before us, and the learned counsel for the appellants has frankly admitted that he has no case on the merits. He, however, relies on a decision of a Full Bench of this Court published as Mt. Salu Bai v. Bajat Khan (1917) 13 NLR 130 , 42 IC 200 (FB), wherein the view taken in the remand order of the Bench in the present case has been overruled, and asks us to reconsider that order and to uphold the original decree of the first Court dismissing the suit.

2. The respondent has urged that Section 105(2) of the CPC 1908, debars the appellants from disputing the order, as it could have been appealed from to His Majesty in Council as a final order under S. 109, (a), and no appeal was preferred.

3. In Miscellaneous Petition No. 16 of 1914, for leave to appeal to His Majesty in Council from First Appeal No. 19 of 1912, a Bench of this Court, following Ahmad Husain v. Gobind Krishna Narain (1911) 33 All 391 , 9 IC 932, and Venkataranga Row v. Narasimha Rao AIR 1915 Mad 423 , 21 IC 842 , 38 Mad 509, has held that, under Section 109 of the CPC, an appeal does not lie to His Majesty in Council against an order of remand under O. 41, R. 23, as it is not a final order within the meaning of S. 109(a), and also that S. 109(c), is not applicable. We are not prepared to differ from that decision and hold that S. 105, (2), does not debar the appellants from disputing the order of remand. In asking us to reconsider the order of remand two arguments are advanced; first, that the case having come up again in appeal the whole of it is opened up for our consideration; second, that we are bound to exercise our inherent power under Section 151 of the CPC. And for the ends of justice reverse the order of remand. With reference to the first argument reliance is placed by the appellant's learned counsel upon the following rulings; Ganendra Nath Ray Choudhury v. Surta Kant Ray Choudhury (1912) 15 IC 39, Thakur Sheo Narain Singh v. Thakur Bishunath Singh AIR 1914 PC 153 , 22 IC 315 , 17 OC 33 (PC), Hira Lal Pal v. Etbar Mandal (1916) 32 IC 866, and Debi Baksh Singh v. Habib Shah (1913) 35 All 33 , 19 IC 526 , 16 OC 194 , 40 IA 151 (PC). The Allahabad case cited last is a case where their Lordships of the Privy Council held that the course adopted in the Court of the Judicial Commissioner in applying rules or orders dealing with the case of the non-appearance of a suitor to the situation which arises when the suitor is dead amounted to abuse of the process of the Court, and it is such abuse that the Court had inherent power to prevent under Section 151 of the CPC. And that apart from the Code any Court has an inherent power to rectify a mistake inadvertently made. This decision deals only with the question of a mistake inadvertently made in applying rules of procedure which result in abuse of the process of the Court. That is not the case here. The Calcutta Weekly Notes cases are all cases where the Appellate Court had remanded under O. 41, R. 25, and it was held that it was open to the appellate Court, after the receipt of findings after remand, to reconsider any point which it had already considered and expressed an opinion on in its order of remand. The ratio decidendi of these rulings is that in a remand under O. 41, R. 25, the case remains pending or undisposed of on the appellate Court's file, and the Judge may yield to conviction and change his mind at any time before he has pronounced a final judgment. In Ganendra Nath Ray Choudhury v. Surta Kant Ray Choudhury (1912) 15 IC 39, however, at p. 466, (of 17 C.W.N) the Judges appear to be of the opinion that even in such a case they would be slow to go back upon any final opinion expressed by another Judge in an earlier stage of the case. No case has been cited before us where a remand order under O. 41, R. 23, has been reconsidered in a subsequent appeal from the decision of the first Court after remand. In the present instance the remand order was under O. 41, R. 23, and the appeal cannot be said to have been pending or undisposed of on this Court's file. In our opinion, the whole case is not opened up on the present appeal from the decree after remand, and it is not open to us, therefore, to reconsider the remand order. We, moreover, consider that the opinion expressed by the former Bench was final and we refuse to go back upon it.

4. The second argument is to this effect. As the view of the law taken by the former Bench is now found to have been erroneous by the Full Bench, whose decision is binding on us, the remand order must be deemed to have resulted in a grave miscarriage of justice. In such circumstances, it is argued, it is our duty to exercise our inherent power under Section 151 of the CPC, and reverse the remand order for the ends of justice. We are bound by and accept the view of the law laid down by the Full Bench, but we do not think that our interference in this case is necessary for the ends of justice. The appellants had filed an application for review on a 2 rupees court-fee stamp. This has been dismissed on the grounds of delay and non-payment of the proper court-fees, namely, Rs. 500. Where the Code has specifically provided for a review, and the appellants have failed to avail themselves of it by a proper application, we do not think they have a right to appeal to, or the Court would be justified in exercising its inherent power to help him to get over the consequences of his default. On the merits the appellants have no case. They have received the benefit of a large sum of money advanced by the plaintiff at a time of stress, and we do not think that either justice or equity requires that we should come to their aid under such circumstances. The appeal fails and is dismissed with costs.

P.N/R.K

5. Appeal dismissed.