Maulvi Muhammad v. Syed Husain

Stuart, C.J:— My answer to this reference is that under s. 622 this Court has the power to pass all orders it could pass in second appeals, to say the least, for I incline to the opinion that s. 622 gives us still larger powers of revision in civil cases than we have in second appeals, where we are limited to questions of law. Under this s. 622, I consider, we can make any order, whether in regard to fact or law, we may think proper for the purposes of the justice of the case. In fact, it appears to me that the power given to the High Court under s. 622 in civil cases very much resembles, if it is not the same as, the jurisdiction given to the High Court in criminal cases under s. 297 of the Criminal Procedure Code, by which the High Court is empowered to “pass such judgment, sentence, or order as it thinks fit.” In my opinion, we have under s. 622 the same power as this in civil cases.

Pearson, J.:— I would answer the question in the affirmative, because the terms of s. 622 seem to include all the grounds on which by the provisions of s. 584 of the Code a second appeal may lie, and to confer powers as extensive as those exercised by the High Court in disposing of second appeals.

Straight, J., Oldfield, J.:— concurring. I would answer this reference by saying that, in my opinion, the terms of s. 622, Act X. of 1877, as amended by Act XII. of 1879, are so wide and comprehensive as to invest the High Court with the power to call for the records of cases not open to second appeal, and to pass any order on them which might properly be made in second appeal. The words added by Act XII. of 1879 were apparently introduced for the purpose of relaxing the somewhat contracted limits within which it had been competent for the High Court to exercise revision over the proceedings of Sub-ordinate tribunals in which no second appeal lay, and to give them a narrow interpretation would, I think, be to defeat the object the Legislature had in view. Placing the most reasonable construction I can upon the terms “acting in the exercise of its jurisdiction illegally or with material irregularity,” I should read them to mean, deciding erroneously in point of law, or irregularly in a material particular in respect of procedure, and if this view be correct, the High Courts must necessarily possess in revision all the powers they have in second appeal. It is argued that this practically provides a second appeal in all cases that are in the strict sense of the term unappealable, and it is further urged that, if so serious an alteration of the law had been contemplated, words might readily have been found to express such an intention. I confess I feel the force of this contention, but I cannot give effect to it in face of the, what appear to me to be, plain directions of s. 622 in its present shape. I would accordingly answer the question put by this reference in the affirmative.

The Division Bench (Oldfield, J., and Straight, J.), on the ‘case again coming before it for disposal, made the following order:—

Oldfield, J.:— We are of opinion that the Judge has wrongly construed the decree and that it does not allow interest on the principal debt but only on the costs. So far the order of the Judge is modified. The applicant will have his costs of this application.