The Judgment of the Court was as follows:—

This is a rule calling upon the opposite party to show cause why the order of the Subordinate Judge of Cuttack, dated the 9th of September 1895, disallowing a claim of the Petitioner under sec. 281 of the Code of Civil Procedure should not be set aside, and why the property under attachment should not be released.

The facts of the case which are necessary to be referred to for the determination of the rule are shortly these:—

The Petitioner Bhagwan Ramanuj Das instituteda suit in the Subordinate Judge's Court at Cuttack on the 27th of November, 1887, against Raghunandan Ramanuj Das, for possession of the Dakhin Paresh Muth at Puri, with the properties appertaining thereto, and obtained a decree on the 29th of April 1889. That decree was reversed by the High Court on appeal on the 27th of April 1891, but was ultimately restored by the decree of Her Majesty in Council on the 2nd of February 1895, and the Petitioner was put in possession of the Muth with its properties, including those now in dispute in execution of this last-mentioned decree, between 23rd of April and the 3rd of June 1895. The Petitioner had, previously to this, applied for execution of the decree of the Subordinate Judge, hut execution was stayed, pending the appeal to the High Court upon Raghunandan Ramanuj giving security.

Subsequent to the institution of the above suit, the opposite party, Khetter Moni Dassi, instituted a suit for the recovery of a certain sum of money against Raghunandan Ramanuj Das, obtained a decree on the 17th of April 1888, and in execution thereof caused the attachment of the immoveable properties, now in dispute, on the 18th of September 1890. The execution case was dismissed for default on the 1st of December 1891, and subsequently after the institution and dismissal of various proceedings in execution, an order for sale of the properties attached on the 18th of September 1890 was applied for and obtained by Khetter Moni on the 15th of April 1895. The Petitioner then put in his claim on the 23rd of May 1895, and it was disallowed on the 9th of September following.

The Petitioner now asks us in the exercise of the power of revision vested in this Court by sec. 15 of the Act, 24 and 25 Vic., C. 104 and sec. 622 of the Code of Civil Procedure, to set aside the order disallowing the claim on the following grounds, tamely:—

First, that the Court below has acted illegally and with material irregularity in ordering the sale of the properties in dispute without a fresh attachment, the previous attachment of the 18th of September 1890 having come to an end by the dismissal of the execution case in which it had been issued and by the dismissal of several successive proceedings in execution, and second, that the Court below has acted illegally in rejecting the claim on the ground that the Petitioner had no absolute interest in the properties in dispute at the date of attachment because the decree for possession which he had obtained was not final, and was pending in appeal.

On the other hand, it is contended for the opposite side, that the order of the Court below is right, and that, even if it is wrong, the case does not come within either of the two provisions of law referred to above, by which the power of revision is vested in this Court.

We shall consider first the question whether the order complained of is wrong on either of the two grounds stated above, and then, if it is found to be wrong, the question whether it can be, and it ought to be set right by this Court in revision either under sec. 15 of the State, 24 and 25 Vic. C. 101, or under sec. 622 of the Code of Civil Procedure.

With reference to the first ground upon which the correctness of the lower Court's order is questioned, we observe, that though it is true, that the execution case in which the attachment, dated the 18th September 1890, was made, was subsequently dismissed for default, and such dismissal was followed by four successive proceedings in execution, each of which was similarly dismissed that does not necessarily show that the attachment came to an end.

The question as to the effect of an order striking an execution-proceeding of the file upon an attachment issued in the course of the proceeding was considered by their Lordships of the Privy Council in Puddomonee Dossee v. Roy Muthoora Nath Chowdhry (5), and this is what their Lordships said upon the point: “It seems to their Lordships that generally where the party prosecuting the decree is compelled to take out another execution, his title should be presumed to date from the second attachment Their Lordships do not mean to lay down broadly that in all cases in which an execution is struck off the file, such consequences must follow. The reported cases efficiently show that in India the striking an execution-proceeding off the file is an act which may admit different interpretations according to the circumstances under which it is done. And accordingly their Lordships do not desire to lay down any general rule which would govern all cases of that kind. In the present case, the orders by which the previous execution-proceedings were terminated, were not mere orders striking them off, but were orders dismissing them, and this, no doubt, is a circumstance that goes in favour of the Petitioner. But it should be borne in mind, that in the succeeding applications for execution after the dismissal of the one in which the attachment in question was made, the decree-holder simply asked for sale of the attached property, assuming the attachment to be still subsisting; the Court also took the same view, and ordered sale proclamations to be issued, and the Petitioner raised no objection in the Court below that the previous attachment had come to an end. The Court below had no opportunity of considering the circumstances under which the several execution-proceedings were dismissed, nor has the Petitioner caused the execution records to be sent for and placed before us. The only material we have before us, are the statements contained in the affidavits put in. In this state of things, and in the present stage of the case, we do not think it would be right to hold that there was no subsisting attachment, and that the order of the Court below was therefore bad in law.

Then, as regards the second ground relied upon by the Petitioner, the Court below is, no doubt, wrong in holding that the decree obtained by the Petitioner in the first Court, which was ultimately affirmed by Her Majesty in Council, did not show that the Petitioner had an interest in the attached property, merely because it was not final, but had been appealed against. But though there was this error in the decision, does that vitiate the order made? To answer this question we must consider secs. 279, 280 and 281 of the Code of Civil Procedure together Sec. 279 provides that the claimant “must adduce evidence to show that at the date of the attachment he had some interest in, or was possessed of, the property attached.” Sec. 280 directs the Court to release the property (we refer only to such portions of the section as apply to this case) if it is satisfied that the “property was not, when attached, in the possession of the judgment-debtor, or of some person in trust for him,” or “that being in the possession of the judgment-debtor or of some person in trust for him” or “that being in the possession of the judgment-debtor,” at such time, it was so in his possession not on his own account or as his own property but on account of or in trust for some other person. And sec. 281 directs it to disallow the claim if it is satisfied that the property was at the time it was attached “in possession of the judgment-debtor as his own property and not on account of any other person or was in the possession of some other person introit for him.” Thus secs. 280 and 281 which respectively specify the cases in which the Court is to allow or disallow a claim, do not harmonize with sec. 279 which lays down what evidence the claimant is to adduce, if the words ‘some interest’ in the last mentioned section are to be taken in their general sense, as the learned Counsel for the Petitioner contends. If his contention is accepted it would follow that the Code directs the claimant to adduce evidence of certain matters, and then it directs the Court to decide the case with reference to matters somewhat different from those that one of the parties is required to prove. To reconcile sec. 279 with secs. 280 and 281, we must take the words ‘some interest’ as implying such interest, as would make the possession of the judgment-debtor, possession not on his own account, but on account of or in trust for the claimant. And if the words are understood in that sense, can it be said that the properties in dispute which were admittedly in the possession of the judgment-debtor that the date of the attachment, were in his possession not as his own property but on account of the claimant, by reason of the claimant having obtained a decree against him, and execution of such decree having been stayed upon his giving security? We are not prepare to answer this question in the affirmative. The security upon which execution was stayed was only for the performance of the decree of the High Court, and became discharged upon the decree of the High Court being pronounced against the Petitioner though ultimately that decree was reverse by the Privy Council. In the sections relating to claims to attached property, what the Code of Civil Procedure provides is a summary investigation into the question of possession, and the question of title is required to be gone into only so far as it may be necessary to determine whether the person in possession holds such possession as agent of or as trustee for another. And the party aggrieved by the summary order has his remedy by a regular suit. We are therefore not prepared to say that the order of the Court below is wrong, though the reasoning upon which is based is unsound. Consequently, the second ground upon which the order of the lower Court is attacked must also fail.

It may be hard that the Petitioner who has obtained a decree against Raghunandan Ramanuj Das, which has been confirmed by the Privy Council, should still have to bring a fresh suit against a creditor of Raghunandan, to establish his right to property covered by such decree, especially when the creditor brought her suit after the institution of the Petitioner's suit, and obtained the attachment after the Petitioner had recovered his decree in the first Court. But on the other hand, it should be observed that the opposite party, in the affidavit filed on her behalf, states that the money covered by her decree was borrowed by Reghunandan Ramanuj Das, the party then in actual possession of the Muth, for the purpose of paying Government revenue due on account of the properties of the Muth; and if that was So, the question may fairly arise whether the money, is not recoverable from the properties of the Muth in the hands of the Petitioner [see Kasim Sahiba v. Sudhindra Thirtha Swami (6)]. Whether the doctrine of lis pendens can be rightly invoked in aid of the Petitioner, and whether the opposite party can succeed upon the principle that a debt contracted for legal necessity by a Mohunt de facto is recoverable from the endowed property in the hands of the Mohunt de jure, are questions which do not, in our opinion, come within the scope of an investigation under the provisions of the Code of Civil Procedure relating to claims to attached property.

But granting that the Court below was wrong in disallowing the claim without determining these questions, is the error such that it ought to be rectified by this Court-in the exercise of its power of revision under sec. 15 of the Act, 24 and 24 Vic., C. 104, or under sec. 622 of the Code of Civil Procedure? We are of opinion that the question ought to be answered in the negative.

Sec. 15 of the Statute, 24 and 25 Vie, C. 104, gives this Court, in general terms, power of “superintendence over all Courts which may be subject to its appellate jurisdiction.” The law having advisedly, and we may add wisfely, left this power unlimited, we do not think it possible or desirable to limit it by any hard and fast rule as observed by Markby, J., in Madhub Chundra Giree v. Sham Chand Giree . “There being no limitation expressed in the language of the section itself, which confers these extraordinary powers, the only limitation upon the exercise of these powers is the discretion of the Court to which the application is made, and such principles as the Judges have themselves laid down for their own guidance in the exercise of that discretion.

“There is some difficulty in extracting any very clear rules from the decisions, and it is not surprising that the decisions upon such a subject are not wholly uniform.” One thing, however, appears to be settled [see the case just referred to and the cases collected in a note to Tejram v. Hur Sukh ], that it is not every error of law that would be a ground for the exercise of this power, and that a party's claim to the interference of this Court is very much weakened where he has another remedy provided for him by law.

Now, in the present case, the error, if any, in the decision of the Court below is nothing more than an error of law, and the Petitioner has full remedy by a regular suit as provided by sec. 283 of the Code of Civil Procedure. The case, therefore, is not a fit one for our interference under sec. 15 of the High Court's Act.

Sec. 622 of the Code of Civil Procedure, no doubt, defines our power of revision somewhat more explicitly; but still it does not limit the power by any rigid rule, and it leaves the matter in one respect wholly undefined.

It provides for the interference of the High Court in any case in which no appeal lies, if the Court by which the case was decided appears (i) to have exercised a jurisdiction not vested in it by law,” or (ii) “to have failed to exercise a jurisdiction so vested,” or (iii) “to have acted in the exercise of its jurisdiction illegally or with material irregularity.”

The first two cases are clear enough and call for no special remark except this that excess of jurisdiction and failure to exercise jurisdiction on the part of a Court must be taken respectively to mean its trying a case which it has no power to try, or its applying to it a mode of procedure not applicable to it, and its refusing to try it when it has power to do so, or its refusing to apply to it a mode of procedure applicable to it [see Birj Mohun Thakur v. Rai Uma Nath Chaudhry (7), Jogodanund Singh v. Amirta Lal Sircar (8)], and that it is not every error that can be called excess of jurisdiction or failure to exercise jurisdiction though the attempt is not unfrequently made to bring every error under the one or the other of these two heads.

It is the third case that presents some real difficulty. At first sight it might seem that acting in the execrise of jurisdiction illegally or with material irregularity would include every error of law, and every material error of procedure, except errors as to jurisdiction. And this in fact was the view taken by the High Court, at Allahabad in Maulvi Mohammed v. Syed Husain (9). But this view is not only open to the objection that it gives, subject only to the discretion of the High Court, an appeal on a point of law or of procedure in the very cases in which the Legislature had denied it, but has now been authoritatively declared to be incorrect by the decision of the Privy Council in Amir Hasmn Khan v. Shen Baksh Singh . Their Lordships held in that case that even if a Court having jurisdiction to decide a case, wrongly decided a question of res judicata in favour of the Plaintiff, it did not exercise its jurisdiction illegally or with material irregularity within the meaning of sec. 622. This decision not only overrules the case of Maulvi Mahammed v. Syed Husain and other cases which put an unlimited construction on sec. 622, but must also necessitate some modification of the limited construction put upon the section by the Bombay High Court in Shiv Nathji v. Joma Kashi Nath (10). For in para, 5 of the conclusions, as summed up in the last-mentioned case, misconstruction of the law is held to be a ground for interference when there is no other remedy provided; and this clearly is opposed to the decision in Amir Hussan v. Sheo Baksh Singh .

That the third clause of sec. 622 is intended to have a meaning distinct from that of the other two clauses must be clear from its having a place in the section; and the history of the legislation on the point makes the intention still more clear. For sec. 622 of the former Code of Civil Procedure, Act X of 1877, as originally framed, contained only the first two clauses, the third was added by the amending Act XII of 1879; and the section, as amended was incorporated in the prtsnee Code. What then is the true meaning of this clause? Amir Hassan Khan's case helps us in answering the question only to this extent, namely, that it settles that it is not every wrong decision on a point of law that comes within the clause. It is unnecessary to examine at length the cases decided before Amir Haasan Khan's case , and also those decided after it which contain no distinct reference to it will be enough to consider the cases of Magni Ram v. Jiwa Lal (11), Badami Kuar v. Dinu Rai (12). Sew Bux Bogla v. Shib Chunder Sen (13), Jugobundo Pattuck v. Jadu Nath Ghose Alkashi (14), Kristamma Naida v. Chapa Naidu ; Mahomed Yusuf Khan v. Abdul Raman Khan (15), and Brij Mohun Thakur v. Rai Umanath Choudhry .

In Magni Ram v. Jiwa Lal and Badami Kuar v. Dinu Rai the High Court of Allahabad held that the effect of the decision of the Privy Council in Amir Hassan Khan's case was that only questions relating to the jurisdiction of the Court could be entertained under sec. 622. With all respect for the learned Judges who decided these cases, we think this view is incorrect. There is nothing in the judgment of the Privy Council to warrant this view, and it would render the third clause of the section altogether superfluous.

In Sew Bux Bogla v. Shib Chunder Sen this Court held that the Small Cause Court, in wrongly applying sec. 295 of the Code of Civil Procedure to a case to which it did not apply, had acted illegally or with material irregularity, within the meaning of sec. 622; and in Jagobundhu Pattuak v. Jadu Hath Ghose Alkashi it was held that the Court below in applying sec. 188 of the Bengal Tenancy Act to a case to which it did not apply, had acted illegally or with material irregularity, and the case came under the third clause of sec. 622. There can be no doubt that these two case come within the scope of sec. 622, but having regard to the view taken by the Privy Council in Birj Mohan Thakur v. Rai Umanath Chowdhry , it might be said that they come within the first clause of the section, rather than the third.

In Kristamma Naidu v. Chapa Naidu , the majority of a Full Bench of the Madras High Court held that the third clause of sec. 622 contemplates a perverse decision on a question of law or procedure, that in, a decision involving a conscious departure from some rule of law or procedure. But as the learned Judges who were in the minority point out, there is nothing in the section to warrant such a construction.

In Mahomed Yusuf Khan v. Abdul Raman Khan the Privy Council simply followed the case of Amir Hassan Khan , and in Birj Mohun Thakur v. Rai Umanath Chowdhry , their Lordships held that the Subordinate Judge in refusing to confirm a sale under sec. 312 of the Code of Civil Procedure, which applied to the case, and in setting it aside under sec. 313 which did not apply to it, “declined to exercise a jurisdiction which he had and exercised one which did not belong to him, and consequently his judgment was liable to be reviewed by the High Court under the 622nd section of the Code of Civil Procedure.”

It is not easy to deduce from these cases any clear rule for the proper construction of the third clause of sec. 622 of the Civil Procedure Code except the negative one that it is not every erroneous decision on a point of law that can come under it. One of the learned Judges who decided the case of Kristamma Naidu v. Chapa Naidu is of opinion that the clause applies only to errors of procedure. “Acting with material irregularity,” no doubt, implies only the committing of an error of procedure, but we are not prepared to say that acting ‘illegally’ means the same thing. It is easy to imagine cases in which Courts may commit gross and palpable errors other than those of procedure, which would justify our saying that they have acted ‘illegally.’

The clause is evidently intended to authorize the High Courts to interfere and correct gross and palpable errors of Subordinate Courts, so as to prevent grave injustice in non-appealable cases; and it seems advisedly to have been expressed in indefinite language from the difficulty of defining exactly the classes of cases which may stand in need of such extraordinary interference. The question whether any case comes under the clause has, in our opinion, to be determined with reference to the grossness and palpableness of the error complained of, and to the gravity of the injustice resulting from it.

Now, the order in the present case was quite within the competency of the Court below to make; and the error complained of is neither so gross and palpable, nor attended with such grave injustice as would justify our interference in revision.

The order is declared to be final by sec. 283 of the Code of Civil Procedure; but the Petitioner has ample remedy against it by a regular suit.

For these reasons we think the rule ought to be discharged with costs. We assess the hearing fee at three gold mohures.

S.C.S

Rule discharged.