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PETITIONER: MOHD. YUNUS

       Vs.

RESPONDENT: MOHD. MUSTAQIM & ORS.

DATE OF JUDGMENT04/10/1983

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1984 AIR   38            1984 SCR  (1) 211  1983 SCC  (4) 566        1983 SCALE  (2)1013

ACT:      Constitution of  India 1950:  Petition under O.XXI r.92 dismissed-Petitioner, if  could file  a petition  under Art. 227 of the Constitution.      Code of  Civil Procedure:  Petition under  O.XXI,  r.92 dismissed-Appeal not  preferred-If  could  move  High  Court under Article 227.

HEADNOTE:      On the  failure of  the judgment-debtor  to satisfy the decree passed  against him  the property in dispute was sold in execution  of the  decree. The surety made an application under  section   151  Code   of  Civil   Procedure,  without mentioning the  order under  which the application was made. The Subordinate  Judge treated  the application as one under order XXI,  r.89. The  surety in that application prayed for time to  deposit the  amount but failed to make the deposit. In the  meantime, he  died. A  total stranger  to his estate purporting to  be his  grand-nephew made  an application for substitution claiming that he was the surety’s successor-in- interest and that before his death the surety had executed a will in  his favour.  On the same day the decree-holder made an application  stating that  the surety had made payment of the decretal amount before the sale was held and prayed that full satisfaction  of the decree be recorded. The respondent who was  the auction-purchaser, contested the genuineness of the will and stated that the alleged adjustment could not in any event  affect his  right or  title to  the  property  in dispute as  auction-purchaser. The Subordinate Judge refused substitution  of   the  petitioner.  Some  time  later,  the petitioner moved  another application  under section  151 of the Code  of Civil  Procedure, for setting aside the sale on the ground  of material  irregularity in conducting the sale but that application was rejected by the Subordinate Judge.      The petitioner  thereupon moved  the High  Court  under Art. 227  of the  Constitution  contending  that  fraud  was perpetrated by the decree-holder in bringing the property in dispute to  sale although there was full satisfaction of the decree by  the surety  before  his  death.  The  High  Court declined to  interfere  with  the  impugned  orders  of  the Subordinate Judge on various grounds.      On  the   question  whether   it  was  proper  for  the

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petitioner to  have moved  a petition  under Art. 227 of the Constitution.      Dismissing the petition 212      HELD:  The   petition  under   Art.  227   was   wholly misconceived. The  supervisory jurisdiction conferred on the High Courts  under Art.  227 of  the Constitution is limited "to seeing  that an  inferior Court  or  Tribunal  functions within the  limits of  its authority", and not to correct an error apparent on the face of the record, much less an error of law.  In the  instant case,  there was no error of law or error apparent  on the  face of  record. From an order under O.XXI, r.92  an appeal lay to the District Judge. That apart the petitioner’s  application raised  a question relating to execution which  fell within  the purview of section 47 Code of Civil  Procedure which  prior to  February  1,  1977  was appealable because  then a  decision under  section  47  was deemed to  be a  decree under  section  2(2)  of  the  Code. Therefore, the  petitioner had  the remedy  of appeal to the District Judge:  Even if  no appeal lay against the impugned orders of  the Subordinate  Judge, the  petitioner  had  the remedy of  filing a  revision before  the High  Court  under section 115  of the  Code. Upon  any view  of the matter the High Court  under  Art.  227  of  the  Constitution  had  no jurisdiction to interfere with the impugned orders passed by the  Subordinate   Judge.  A  mere  wrong  decision  without anything more  is not  enough to attract the jurisdiction of the High  Court under Article 227.[215 E: 216B-C; 215F-H;216 A]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Special  Leave  Petition No.9148 of 1980.      From the  Judgment and  Order dated  the 3rd September, 1980 of the High Court of Delhi in C.M. (N). No. 49 of 1974.      Prithvi Raj and Chaman Lal Itorora for the Petitioner.      I.D. Garg and K.B. Rohtagi for the Respondents.      The Judgment of the Court was delivered by      SEN,J: This special leave petition directed against the judgment and  order of  the Delhi High Court dated September 3, 1980  must fail  as the  decision of  the High  Court  on merits is  unassailable. But in view of the growing tendency of litigants of by-passing the normal remedy of an appeal or revision by  moving the High Court with petitions under Art. 227 of  the Constitution,  we deem  it necessary to give the reasons therefor.      It appears  that the  property belonging  to the surety Mohd. Salam  comprised of  a house  situate at  Katra Sheikh Chand, Lal  Kuan, Delhi  was sold  by the Subordinate Judge, Delhi in  execution of an ex parte decree in favour of Mohd. Mustaqim due  to the  failure of  the judgment-debtor  Hakim Mazhar-ud-Din to satisfy the decree on May 24, 1972. On June 9, 1972 the surety made an 213 application under  s. 151  of the  Code of  Civil Procedure, 1908 without  specifying whether  it was  under O.XXI,r.  90 The learned  Subordinate Judge  by his  order dated June 10, 1972 treated  the application  to be  under O.XXI, r. 89 and the surety  opted to elect it as such and prayed for time to deposit the  solatium equal  to 5% of the purchase money for payment to  the auction-purchaser  Chuni Lal,  but failed to make such  deposit the  till death  on July  22, 1972. At no stage of  the proceedings  did the  surety assert  that  the

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decree had  been satisfied  out of Court, nor did he make an application  under   O.XXI,  r.   2  for   certification  of adjustment. He  died leaving  behind him  a son  named Mohd. Karim and  a daughter named Mst. Rabia Khatoon, both of whom were apparently  settled in  Pakistan, After  his death,  on August 11,  1972, the  petitioner who is a total stranger to the estate  of  the  deceased-surety,  made  an  application stating  that   his  name  be  substituted  as  he  was  the grandnephew of  the surety  and also his heir and successor- in-interest under  an alleged will executed by the surety on July 20,  1972 i.e.  two days  before his death. On the same day, there  was an  application moved  by the  decree-holder stating that  the surety  had already  made payment  of  the decretal amount and costs to him before the sale was held on May 24, 1972 and that full satisfaction of the decree may be recorded. The  respondent,  who  is  the  auction-purchaser, contested the claim of the petitioner and pleaded inter alia that the genuineness of the alleged will is open to question apart from  its validity  as it was affected by the doctrine of  marz-ul  maut  and  that,  in  any  event,  the  alleged adjustment could  not affect  his  right  or  title  to  the property in dispute as an auction-purchaser.      The  learned  Subordinate  Judge  by  his  order  dated November 23,  1972  held  that  there  was  no  question  of allowing the  substitution of  the name of the petitioner by the Court  under its  inherent powers.  On December 15, 1972 the petitioner  moved another application under s.151 of the Code for setting aside the sale on the ground that there was material irregularity  in publishing and conducting the same and also  to record satisfaction of the decree and set aside the sale.  That application  of his  was disallowed  by  the learned Subordinate  Judge by  his order  dated November  9, 1973 on the ground that his earlier order dated November 23, 1972  holding  that  the  application  made  by  the  surety purporting to  be under  O.XXI, r.89 stood disposed of as he did not  comply with  the requirements  of r.89, operated as res judicata,  and no question of invocation of the inherent powers of the Court arose and further that the 214 application made by the petitioner treated as an application under O.XXI,  r.89 was  barred by limitation as it was filed beyond the  period of  30 days  prescribed by Art.127 of the First Schedule to the Limitation Act, 1963.      Dissatisfied with  the impugned  orders passed  by  the learned Subordinate  Judge, the  petitioner moved  the  High Court under  Art. 227  of the  Constitution. The  contention before the  High Court  was that there was fraud perpetrated by the  decree-holder in bringing the property in dispute to sale although  there was  full satisfaction of the decree by the surety  before his  death. The  High  Court  instead  of dismissing in  limine the  petition  under  Art.227  of  the Constitution as not maintainable, declined to interfere with the impugned orders of the learned Subordinate Judge because it was satisfied that the application made by the petitioner construed as  an application  made under  O.XXI, r.89 to set aside  the   sale  was  barred  both  by  the  principle  of constructive res judicata and also by limitation inasmuch as it was  governed by  Art.127 of  the First  Schedule to  the Limitation Act, 1963,      We fail  to see  the propriety of the petition moved by the petitioner  in the  High  Court  under  Art.227  of  the Constitution. The rule is well-established that there can be no certification  of an adjustment between the decree-holder and the  judgment-debtor under  O.XXI, r.2 after an auction- sale is  held in  a case  where  a  third  party’s  interest

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intervenes. In such a case, the Court has no alternative but to confirm  the sale  under O.XXI,  r.92  of  the  Code.  In Nanhelal &  Anr. v.  Umrao Singh,  the Judicial Committee of the Privy  Council in  dealing with  o.XXI, r.2  of the Code held that  an adjustment  between the  decree-holder and the judgment-debtor come  to at any time before the confirmation of an  execution sale  cannot nullify  the decree  by taking away the very foundation of the Court’s power to execute the decree viz.  the existence of a decree capable of execution. In dealing with the question, the Privy Council observed:           "In the first place, 0.21, R.2, which provides for      certification of  an adjustment  come to  out of Court,      clearly  contemplates   a  stage   in   the   execution      proceedings when  the  matter  lies  only  between  the      judgment-debtor 215      and the decree-holder, and when no other interests have      come into  being. When once a sale has been effected, a      third party’s interest intervenes, and there is nothing      in this  rule to  suggest that it is to be disregarded.      The only means by which the judgment-debtor can get rid      of a  sale, which  has been duly carried out, are these      embodied in  R.89, viz,  by  depositing  in  Court  the      amount for the recovery of which the property was sold,      together with  5 per  cent on  the purchase money which      goes to  the purchaser  as statutory  compensation, and      this remedy  can only  be pursued within 30 days of the      sale: see Art. 166, Sch.1, Lim. Act, 1908." The Privy Council further observed:           "That this  is so  is clear  from tho  wording  of      R.92, which  provides that  in such  a case (i.e. where      the sale  has been duly carried out), if no application      is made  under R.89,  the Court  shall  make  an  order      confirming the sale and thereupon the sale shall become      absolute."      The petition  under Art.227  of  the  Constitution  was wholly misconceived.  An appeal  lay  from  an  order  under O.XXI, r.  92 setting aside or refusing to set aside a sale, under O.XLIII,  r. 1  (j) to the District Judge. That apart, the application  made by  the petitioner  claiming to be the legal representative  of the  surety, the  judgment-debtor’s representative, on  the one  hand and the auction-purchaser, the decree-holder’s  representative, on  the other  alleging that there had been a fraud perpetrated by the decree-holder in causing  the sale to be held, with a prayer for recording satisfaction  of   the  decree  under  O,XXI,r.2,  raised  a question   relating   to   the   execution,   discharge   or satisfaction of  the decree  and therefore  fell within  the purview  of  s.  47  which  prior  to  February  1,1977  was appealable because then a decision under s. 47 was deemed to be a  decree under  s. 2(2)  of the  Code, and therefore the petitioner had  the remedy  of an  appeal  to  the  District Judge. Even  if no appeal lay against the impugned orders of the learned subordinate Judge, the petitioner had the remedy of filing  a revision  before the  High Court under s.115 of the Code. Upon any view of the matter, the High Court had no jurisdiction to interfere with the impugned orders passed by the  learned  Subordinate  Judge,  under  Art.  227  of  the Constitution. A mere wrong decision without anything 216 more is  not enough  to attract the jurisdiction of the High Court under Art. 227.      The supervisory  jurisdiction  conferred  on  the  High Courts udder  Art. 227  of the  Constitution is  limited "to seeing that  an inferior  Court or Tribunal functions within

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the limits  of its  authority", and  not to correct an error apparent on  the face  of the  record, much less an error of law. In this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no  failure on the part of the learned Subordinate Judge to exercise  jurisdiction nor  did he  act in  disregard  of principles of natural justice. Nor was the procedure adopted by him  not in  consonance with the procedure established by law. In  exercising the supervisory power under Art.227, the High Court  does not  act as an Appellate Court or Tribunal. It will  not review  or re-weigh the evidence upon which the determination of  the inferior court or tribunal purports to be based or to correct errors of law in the decision.      The special leave petition is accordingly dismissed. P.B.R.                                   Petition dismissed. 217