http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: MANINDRA LAND AND BUILDINGCORPORATION LTD.

       Vs.

RESPONDENT: BHUTNATH BANERJEE AND OTHERS

DATE OF JUDGMENT: 02/05/1963

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR SUBBARAO, K. MUDHOLKAR, J.R.

CITATION:  1964 AIR 1336            1964 SCR  (3) 495  CITATOR INFO :  RF         1964 SC1341  (16)  F          1966 SC 153  (12)  R          1966 SC 439  (4)  R          1972 SC2379  (9)  RF         1978 SC1341  (10)

ACT:      Substitution-Application beyond time for setting  aside abatement-Lower  Court’s  order set aside by High  Court  in revision-Propriety-Power  of High Court in revision-Code  of Civil Procedure, 1908 (Act V of 1908), s. 115, O. XXII. rr. 4, 9 (2),(3)-Indian Limitation Act, 1908 (Act 9 of 1908), ss. 3,4,5 Arts. 171,176.

HEADNOTE:      The  appellant made an application beyond time for substitution, on setting aside the abatement of the suit  he had  filed  against  the father  of  the  respondents.   The Subordinate  judge held that the appellant was prevented  by sufficient  cause from continuing the suit and  allowed  the application.  The High Court in revision, disagreed with the Subordinate  judge and held that the appellant had  entirely failed  to make out any good cause for applying  much  later than the period allowed by law.      Held that it was not open to the High Court to question the  findings  of fact recorded by a  subordinate  court  In exercise of its revisional jurisdiction under s. 115 Code of Civil Procedure, which, it is well settled, applies to cases involving questions of jurisdiction.      Balakrihna  Udayar  v. Vasudeva Aiyar, (1917)  L.R.  44 I.A.  261,  M/s.   A.  Batchamian Saheb and  Co.  v.  A.  N. Channiah  G.A. Nos. 452 and 487/62 decided on 19.10.62,  joy Chand  Lal Babu v. Kamalaksha Chaudhury, (1949) L.R.76  I.A. 131  and  Deshardeo Ohamria v. Radha Kisses  Chamria  [1953] S.C.R. 136, referred to.      If  in  construing  the  necessary  provisions  of  the Limitation Act or in determining which provision of the  Act applies,  the  Subordinate  Court  comes  to  an   erroneous decision, it is open to the Court ill revision to  interfere with that conclusion. 496

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

Held further, that the Subordinate Court had exclusive jurisdiction  to  decide both the questions of  fact,  viz., whether  the appellant had sufficient cause for not  making an application   for setting aside the abatement. within the time prescribed and whether the appellant was prevented from sufficient  cause  from not making an  application  for  the substitution of thelegal    representatives   within    the prescribed time.      Babu Rain v. Munna Lal (1927) I.L.R. 49 All. 454, Hars Bhikaji  v   . Naro Vishvanath (1885) I.T ..R. 9  Bom.  432, Dwarka v. Union  of  India, (1954) I.T.R. 33  Pat.  176  and Basantilata v. Amar   Nath,   A.I.R.  (1950)  Cal.   41   1, distinguished.

JUDGMENT:      CIVIL  APPELLATLE  JURISDICTION  :  Civil  Appeal   No. 524/62.      Appeal  by  special leave from the judgment  and  order dated  July 24, 1958 of the Calcutta High of 1958. Court  in Civil Revision No. 748 of 1958      N.  C. Chatterjee, E. Udayaratnam and D. N.  Mukherjee, for the appellant.      B Sen and S. Gosh, for respondents Nos. 1 to 3.      1963.   May 2. The judgment of the Court was  delivered by      RAGHUBAR  DAYAL J.--This appeal, by special  leave,  is directed  against  the  order of  the  Calcutta  High  Court disallowing  the application of the appellant  under  sub-r. (2)  of r. 9 of Order XXII of the Code of  Civil  Procedure, hereinafter called the.  Code, for the setting aside of  the abatement  of the suit it had instituted against the  father of the respondents. The  suit was instituted on April 29,1952, by the  appellant corporation   against  Kalosashi  Banerji,  father  of   the respondents, to recover a sum of money due on a mortgage  by deposit  of title deeds.  The defendant contested the  suit. Ultimately, a  497 preliminary  decree  in  the suit was  passed  ex  parte  on February’s,  1955.  On an application presented on June  11, 1955, final decree was passed on June 23, 1955.      The  first  application  for execution  of  the  decree presented  on August 30, 1955, was dismissed for default  on October 4, 1955, on account of the decree-holder not  taking any  steps as a result of the report of  the  process-server dated  September  14,  1955,  stating  that  the   defendant Kalospshi Banerji had died.      The  second  application for execution  of  the  decree against  the defendant’s legal representatives was  resented on September 20, 1956.  On January 30 1957, the  respondents filed  an objection under s. 47 of the Code and on March  1. 1957,  they disclosed the date of death of Kalosashi  to  be July  20, 1954, by producing a certified copy of  the  death register showing the date.      Thereafter,  the  appellant filed the  application  for substitution,   on   setting  aside  the   abatement.    The respondents   opposed  this  application  and  the   learned Subordinate  Judge,  however, held that  the  appellant  had established  that it was prevented by sufficient cause  from continuing the suit and, allowing the application, set aside the abatement of the suit.  The respondents then went up  in revision to the High Court.  The High Court disagreed  -with the  Subordinate  judge  and held  that  the  appellant  bad

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

entirely failed to make out any good cause for the delay  in applying  for  the setting aside of the  abatement  and  for applying for substitution much later then the period allowed by law.      Kalosashi, the defendant, died on July, 20, 1954.  The suit abated on account of the plaintiff having    taken   no steps  to bring the legal representatives on  record  within the period of 90 days as 498 required  by Art. 176 of I Schedule to the  Limitation  Act. The  appellant could have applied for the setting  aside  of the  abatement within the next 60 days in view of Art.  171. Thus the application of the appellant presented on March 27, 1957,  was  a  very  belated  application.   The   appellant therefore had to satisfy the Court in two respects.  Firstly it had to satisfy the Court, in order to obtain advantage of the  provisions of s. 5 of the Limitation Act which  applies to applications under r. 9 (2) of O. XXII in view of  sub-r. (3) of r. 9 of that Order, that it had sufficient cause  for not  making the application within the period of  limitation prescribed for an application to set aside the abatement  of the  suit  and, secondly, it had to establish  that  it  was prevented  by any sufficient cause from continuing the  suit by making an application under r. 4 of O. XXII for the legal representatives of the deceased defendant to be made parties to the suit within the prescribed period of limitation.   To satisfy  the Court in these respects, the appellant  had  to show when it learnt that the defendant had died prior to the passing  of  the decree, that it was  necessary  to  implead legal  representatives of the deceased in the suit and  that the  delay in knowing of this fact and in its  applying  for the  setting aside of the abatement of the suit was not  due to  laches on its part.  On these two questions of fact  the findings of the trial Court were in its favour.      It  is not necessary for the purpose of this appeal  to state  the reasons which were urged as a justifiable  excuse for  the  inability of the appellant to take  the  necessary steps earlier.  It is not open to the High Court to question the findings of fact recorded by a Subordinate Court in  the exercise of its revisional jurisdiction under s. 115 of  the Code  which, it is well-settled, applies to cases  involving questions  of  jurisdiction, i. e. questions  regarding  the irregular  exercise or non-exercise of jurisdiction  or  the illegal assumption of jurisdiction by a Court and is not  499 directed  against  conclusion  of  law  or  fact  in   which questions  of  jurisdiction  are not  involved  :  See  Bala Krishna  Udayar  v. Vasudeva Aiyar (1);  M/s  A.  Batchamian Sahib and Co. v. A. N. Channiah (2).  This legal position is not disputed for the respondents.      It  is  however  contended for the  respondent  that  a decision  on a question of limitation involves the  question of  jurisdiction and in support of this contention  reliance is  placed  on the case reported as Joy Chand  Lal  Babu  v. Kamalaksha Chaudhury (3).  This case laid down no  different principle  of  law.   What it said in  that  connection  was quoted  with approval in Keshardeo Chamria v.  Radha  Kissen Chamria (4) and those observations are :               "There  have  been  a  very  large  number  of               decisions of Indian High Courts on section 115               to  many  of which their Lordships  have  been               referred.   Some of such decisions prompt  the               observation that High Courts have riot  always               appreciated that although error in a  decision               of  a  subordinate  court ,  does  not  itself

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

             involve  that the subordinate court has  acted               illegally or with material irregularity so  as               to justify interference in revision under sub-               section  (c), nevertheless, if  the  erroneous               decision  results  in  the  subordinate  court               exercising a jurisdiction not vested in it  by               law, or failing to exercise a jurisdiction  so               vested, a case for revision arises under  sub-               section (a) or sub-section (b) and sub-section               (c) can be ignored." The  further  observations  in that case  on  which  learned counsel for the respondents mainly relies are :               "The cases of Babu Ram v. Munna Lal (5) and               Hari Bhikaji v. Naro Vishvanath            may               be               (1)(1917) L -R. 44 1. A. 261, 267.               (2)   C.   As  452  and  487/62   decided   on               19.10.1962.               (3) (1949) L R 76 I.A. 131,142               (4) (1953) S.C.R. 136,152               (5) (1927) I.L.R. 49 ALL.454               (6) (1885) I.L.R. 9 BOM.432               500               mentioned  as  cases in  which  a  subordinate               court   by   its   own   erroneous    decision               (erroneous,  that is, in the view of the  High               Court),  in  the  one  case  on  a  point   of               limitation  and in the other on a question  of               res   judicata,   invested   itself   with   a               jurisdiction  which in law it did not  possess               and   the  High  Court  held,  wrongly   their               Lordships  think,  that  it had  no  power  to               interfere  in  revision  to  prevent  such   a               result." These remarks are not applicable to the facts of the present case.  They apply to cases in which the law definitely ousts the  jurisdiction  of  the Court to try  a  certain  dispute between  the parties and not to cases in which there  is  no such ouster of jurisdiction under the provisions of any law, but  where  it  is left to the  Court  itself  to  determine certain matters as a result of which determination the Court has  to pass a certain order and may, if necessary,  proceed to decide the dispute between the parties.  The  distinction between the two classes of cases is this.  In one, the Court decides a question of law pertaining to jurisdiction.  By  a wrong  decision  it clutches at jurisdiction or  refuses  to exercise jurisdiction.  In the other, it decides a  question within its jurisdiction.  In the present case, the  question whether there was a sufficient cause was exclusively  within the jurisdiction of the Court and the Court could decide  it rightly or wrongly.      Section  3  of the Limitation Act enjoins  a  Court  to dismiss   any   suit  instituted,   appeal   preferred   and application made, after the period of limitation  prescribed therefor by the I Schedule irrespective of the fact  whether the  opponent had set up the plea of limitation or not.   It is the duty of the Court not to proceed with the application if  it is made beyond the period of  limitation  prescribed. The  Court had no choice and if in construing the  necessary provision of the Limitation Act or in determining which  501 provision  of  the Limitation Act applies,  the  Subordinate Court  comes  to an erroneous decision, it is  open  to  the Court in revision to interfere with that conclusion as  that conclusion  led  the Court to assume or not  to  assume  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

jurisdiction  to  proceed  with the  determination  of  that matter.      Section  5 of the Limitation Act, on the  other  hand., empowers  the  Court to admit an application, to  which  its provisions  arc made applicable, even when  presented  after the  expiry of the specified period of limitation if  it  is satisfied  that the applicant had sufficient cause  for  not presenting   it  within  time.   The  Court  therefore   had jurisdiction to determine whether there was sufficient cause for  the  appellants  not making  the  application  for  the setting  aside of the abatement of the suit in time and,  if so satisfied, to admit it.      Babu  Ram’S case (1), referred to in  the  observations relied on for the respondent was a case, which according  to the reports, was a case in which the application for setting aside the ex parte decree passed onDecember  15,  1925, was made on April 19, 1926,much beyond the period ;of one month prescribedfor  making such applications  from  the date  of the decree.  The question of limitation was  simply ignored  by  the trial Court which restored the  suit.   The High Court held that the mere fact of the appellate  Court’s granting  the  application  for restoration  amounted  to  a decision  in  law that the application  had  been  presented within time and that such a decision, even if wrong, did not fall  under either cl. (a), (b) or (c) of s. 115  C.P.C.  It was  this  view  of the Court which was held  by  the  Privy Council to be wrong.  The case does not relate to the  Trial Court’s  finding  that there was sufficient  cause  for  not making the application within the period prescribed. (1)  (1927) 1. L R. 49 AIL 454 502      The  other case referred to viz., Hari  Bhikaji’s  Case (1).  was  where  the  Trial Court had  gone  wrong  on  the question of res judicata.  Section II of the Code  prohibits any  Court  -from trying any suit or issue  which  would  be covered by the various provisions of that section.  There is no  option  in  the  Court  to  try  such  a  suit  in   any circumstance.   Similar was the Joy Chand Case (2),in  which the judical Committee had made those observations.  In  that case the judgment debtors, in a decree passed in a suit  for the recovery of the amount-of money lent, applied under  ss. 30  and 36 of the Bengal Money Lenders Act for relief.   The provisions of the Act applied to suits for recovery of loans other  than commercial loan as defined in that Act.  If  the loan to recover which a suit was instituted was a commercial loan, relief claimed by the judgment debtors could not  have been granted to them as the Act did not apply to  commercial loans  and  as  the Court had no jurisdiction  to  give  the necessary  relief.   The trial Court held that the  loan  in that  suit was a commercial loan and therefore did not  come within the terms of the Act.  The High Court disagreed  with that view and held that the loan was not a commerical  loan. The  High  Court had therefore set aside the  order  of  the Subordinate   judge  in  the  exercise  of  its   revisional jurisdiction.  The judicial Committee considered whether the High Court was right in doing so and said at p. 142 :               "In  so  doing,  on the  assumption  that  his               decision  that the loan was a commercial  loan               was  erroneous,  he  refused  to  exercise   a               jurisdiction vested in him by law, and it  was               open  to  the High Court to  act  in  revision               under sub-s. (b) of s. 115." and thenfollowed the observations already quoted above.    It is clear that on the decision of the questionthe Subordinate Court had to determine in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

(1) (1885) I.L.R. 9 Boom. 432. (2) (1949) L.R. 76 I.A. 131, 142,  503 that  case  depended its very jurisdiction  to  take  action under  that  particular  Act.  It had  the  jurisdiction  to decide  the question, but it could not give jurisdiction  to itself  or give up the exercise of its jurisdiction  in  the matter  on  the basis of its finding if that  be  erroneous. Neither  the facts of that case are comparable to the  facts of  the  present  case nor the observations  relied  on  the learned  counsel  for the respondents can be  applicable  to this case, as here the Subordinate judge had jurisdiction to decide  both  the  questions  of  ’fact  viz.,  whether  the appellant had sufficient cause for not making an application for  setting  aside  the abatement of the  suit  within  the period prescribed and therefore had sufficient cause for the Court’s exercising its discretion in extending the period of limitation  in  view  of  the provisions  of  s.  5  of  the Limitation  Act and also the fact whether the appellant  was prevented   from  sufficient  cause  from  not   making   an application    for   the   substitution   of    the    legal representatives  within the prescribed period of  limitation and  thus  continuing  with the suit.   The  Court  had  the jurisdiction  to decide both the questions of fact and  also to proceed with the suit as a result of its decision.      We   may  refer  to  two  cases  relied  on   for   the respondents.    In  Dwarka  v.  Union  of  India   (1),   an application  for  setting  aside an ex  parte  decree  dated November 30, 1951 was made on January 25, 1952, Though  made after the expiry of the period of limitation, it was held to be  within time on the view that the Court, though  open  on January 2, 1952 must be treated as closed as DO  substantive work  was transacted on that day.  The High Court held  that the trial Court was wrong in its view about the Court  being taken  as closed on January 2, and therefore the High  Court interfered  in  revision.  The trial  Court  misapplied  the provisions  of s. 4 of the Limitation Act which  allows  the making  of  an  application on the day on  which  the  court reopens after the day on (1)(1954) 1, L. R. 33 Pat. 176. 504 which  the  period of limitation prescribed for  making  the application expires and on which day the Court happens to be closed.   The  trial Court had gone absolutely  against  the provisions  of  this section in ignoring the fact  that  the Court  reopened on January 2, and not on January  25,  1952. The  High Court, in coming to its conclusion, relied on  the provisions of s. 3 of the Limitation Act.  Section 5 of  the Limitation Act is not applicable to applications for setting aside ex parte decrees under O.IX, r. 13 of the Code.   This case does not decide that the finding about the Court  being satisfied about the existence of sufficient cause was such a finding  as  involved jurisdiction and  therefore  could  be interfered with by the High Court.      In the case reported as Basantilata v. Amar Nath(1) the High  Court interfered as the Trial Court  had  misconstrued and  mis-applicd  the provisions, of ss. 10 and  11  of  the Indian Soldiers (Litigation) Act 1925 (Act IV of 1925).  The suit was dismissed on December 14, 1942.  An application for the setting aside of the order of dismissal was made on July 15,  1947.  The plaintiff, who was a soldier,  served  under war  conditions from May 23, 1942 to November 25, 1946  when he  was  discharged.  Thus the total  period  the  plaintiff served under war conditions was 4 years 6 months and 3 days. The  question  was  whether this entire  period  had  to  be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

excluded  in computing the period of limitation  for  making the application for setting aside the dismissal of the suit. The  Subordinate  Judge  excluded it  and’  the  High  Court considered  it unjustifiable to exclude the period prior  to December  14, 1942, the date of the decree, as  that  period could not have in any way prevented the plaintiffs in making the  application  for  the setting aside  of  the  dismissal order.   Here again, the error committed by the Trial  Court was  not in coming to a finding of fact in  connection  with the provisions (1)  A. 1. R. 1950 Cal. 411.  505 of  s.  5  of  the Limitation  Act  which  applied  to  such applications  but  on the Court’s deciding the  question  of limitation  in  connection with which sub-s. (2)  of  s.  10 followed practically the language of s. 3 of the  Limitation Act as it said that no such application would be entertained unless it was made within a certain time.      We arc therefore of opinion that the High Court fell in error in interfering with the finding of fact arrived at  by the Subordinate judge with respect to the appellants  having sufficient cause for not making an application for  bringing the  respondents on record within time and for not  applying for  the  setting aside of the abatement  within  time.   We allow the appeal with costs throughout, set aside the  order of the Court below and restore that of the Trial Court.   It will  ’now  proceed  according  to  law  with  the   further execution of the decree on the second application  presented by the appellant for the purpose.                                              Appeal allowed. 506