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PETITIONER: PANDURANG DHONI CHOUGULE

       Vs.

RESPONDENT: MARUTI HARI JADHAV

DATE OF JUDGMENT: 26/04/1965

BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. SHAH, J.C. MUDHOLKAR, J.R. SIKRI, S.M.

CITATION:  1966 AIR  153            1966 SCR  (1) 102  CITATOR INFO :  R          1966 SC 439  (4)  R          1972 SC2379  (9)  R          1973 SC  76  (5)  RF         1978 SC1341  (12)

ACT: Code of Civil Procedure, 1908 (5 of 1908), s. 115-Revisional Jurisdiction    of   High    Court-Tests--Construction    of document   of law-When jurisdiction can be exercised.

HEADNOTE: In  a  suit  for  redemption of  a  mortgage  filed  by  the respondents’ predecessors on a_ mortgage executed by them in favour of the appellants’ predecessors, a decree was  passed directing  the respondents’ predecessors -to pay  a  certain sum within a specified time to the appellant’s  predecessors and recover possession of the mortgage property and in  case of  failure  to pay within the specific time they  shall  be deemed  to have lost the right of redemption for  all  time. According  to the respondents the money was not  paid;  even so,  the  relationship between the parties continued  to  be that  of the mortgagors and mortgagees.  So the  respondents filed an application-under the Bombay Agriculturists Debtors Relief  Act  for justice of the debt., The  appellants  also filed  an application for adjustment of the debt  due  under the  decree; but in doing so, they made it clear  that  they were  making the application as a matter of  precaution  and without  prejudice to their contentions that the  equity  of redemption  had been extinguished and the parties no  longer stood  in  the relationship of creditors and  debtors.   The trial  court  rejected the appellants’ contention  that  the mortgage  had been extinguished and held that the equity  of redemption  still  vested  in the respondents;  but  as  the respondents’  application was barred by time,  it  dismissed the respondents’ application.  On appeal, the District Court held, inter alia, that the decree was a composite decree and on  the  respondents’ failure to pay  the  decrement  amount within  the  time  specified,  their  right  lo  redeem  the mortgage  was  extinguished by virtue of the  express  terms

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contained in it, and dismissed the respondents’ appeal.   On revision  under s. 115 of the Code of Civil  Procedure,  the High Court construed the decree as a preliminary decree  and found that the clause purporting to extinguish the equity of redemption  did  not  effect its essential  character  as  a preliminary  decree  and did not in law out an  end  to  the relationship of creditor and debtor between the parties.  In appeal  to  this  Court, the appellants  contended  that  in reversing  the  conclusion of the District Court,  the  High Court exceeded its jurisdiction under s. 115 of the Code. HELD : This contention was well founded and must be  upheld. [106H] While  exercising  its jurisdiction under s. 115 it  is  nut competent  to  the  High Court to  correct  errors  of  fact however,  gross they may be, or even errors of  law,  unless the  said  errors have relation to the jurisdiction  of  the court  to  try the dispute itself.  The tests laid  down  in Clauses  (a) (b) and (c) of s.. 115, before the  High  Court exercises its revisional jurisdiction, are, does the alleged misconstruction of the statutory provision have relation  to the  erroneous  assumption  of  the  jurisdiction;  or   the erroneous failure to exercise jurisdiction; or the  exercise of  jurisdiction illegally or with material irregularity  by the  subordinate; court.  It is well-settled that a plea  of limitation or plan of 103. res   judicata  is  a  plea  of  law  which   concerns   the jurisdiction  of the court which tries the  proceedings.   A distinction  must  be  drawn  between  errors  committed  by subordinate  courts in deciding questions of law which  have relation   to,   or  are  concerned   with,   questions   of jurisdiction of the said court, and error of law which  have no  such  relation  or connection.  It  is  undesirable  and inexpedient  to  lay  down general rule in  regard  to  this position. [107 A-E; 108 D-E] Manindra  Land  and Building Corporation  Ltd.  v.  Bhutnath Banerjee  and  Others,  A.I.R.  1964  S.C.  1336  and   Vora Abbasbhai Alinahomed V. Haji Gulamnabi Haji Safibhai, A.I.R. 1964 S.C. 1341. The construction of a document of title is no doubt a  point of law.  Even so, it cannot be held to justify the  exercise of the High Courts’ revisional jurisdiction under s. 115  of the  Code because it has no relation to the jurisdiction  of the  Court.   Like  other matters  which  are  relevant  and material  in determining the question of the  adjustment  of debts, the question about the existence of the debt has been left to the determination of the courts which are authorised to administer the provisions of the Act; and even in dealing with  such  questions, the trial court or  District.   Court commits  an  error of law, it cannot be said that,  such  an error  of law would necessarily involve the question of  the said  court’-, jurisdiction within the meaning of s. 115  of the Code. [108H-109C] OBITER  :  When Legislature pass Acts  dealing  with  socio- economic matters, or make provisions for the levy of  sales- tax,  it is realised that the operative provisions  of  such legislation present difficult problems of construction;  and as sometimes, the Act in question provides for a  revisional application  to the High Court or authorises a reference  to be  made  to  it.  In  such  cases,  the  High  Court   will undoubtedly   deal   with  the  problems   raised   by   the construction  of the relevant provisions in accordance  with the  extent  of  the jurisdiction conferred  on  it  by  the material   provisions  contained  in  the  statute   itself. Sometimes, however, no such specific provision is made,  and

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the  question raised in regard to the construction,  of  the provisions of such a statute reach the High Court under  its general  revisional jurisdiction under s. 115 of  the  Code. In  this class of cases, the revisional jurisdiction of  the High Court has to be exercised in accordance with the limits prescribed by the said section. [107 E-H]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 163 of 1963. Appeal  by special leave from the judgment and decree  dated October 31, 1960 of the Bombay High Court in Civil  Revision Application No. 2131 of 1957. S.   P. Sinha and M. I. Khowja, for the appellants. C.   B. Agarwala and A. G. Patraparkhi, for the respondents. The Judgment of the Court was delivered by : Gajendragadkar, C.J. This appeal by special leave arises out of proceedings initiated under the provisions of the  Bombay Agricultural  Debtors  Relief  Act, 1939 (No.  28  of  1939) (hereinafter called ’the Act’).  The respondents Maruti Hari Jadhav and two 104 others  moved  the     B.A.D.R. Court at Karad  on  May  26, 1949,  for               adjustment of  the debt alleged  to be   due          from them to  the  appellants,  Pandurang. Dhondi  Chougule & others.  Their case was that the debt  in question  was  due under a mortgage deed executed  by  their gand-father in favour of the grand-father of the  appellants on  August  29, 1881.  By this  mortgage,  six  agricultural lands situated atKapil  in the former State of Oundh  had been  mortgaged to the             portage  with  possession for   a   sum  of  Rs.  575.   In  1908,   the   respondents predecessoes-in-interest sued on this mortgage in the  Court of  the Sub-Judge at Kapil (Civil Suit No. 28  of  1908-09). This  suit  was, however, withdrawn with liberty to  file  a fresh  suit.  Then followed another suit by the  respondents in the same Court for redemption of the mortage (No. 102  of 1932-33).  On September 2, 1936, a decree came to be  passed in the said suit.  According to the respondents, the  decree directed  them to pay Rs. 3,677-12-6 within six months  from the  date on which it was drawn but the said money  had  not been  paid;  even so, the relationship between  the  parties continued to be that of ’the mortgagors and the  mortgagees, and  so, they were entitled to claim adjustment of the  debt in  question.  The respondents also pleaded that the  decree which  was  passed in the said suit was in the nature  of  a preliminary decree, and though the appellants were  entitled to  apply  for  making  the  said  decree  final  after  the expiration of the six months’ period prescribed by it,  they took  no  such  action and  the  mortgage  debt,  therefore, remains unpaid arid the equity of redemption vesting in  the respondents  is  unextinguished.   That, in  brief,  is  the nature  of  the  claim  made  by  the  Respondents  in   the application  made  by them under the Act for  adjustment  of their debt due to the appellants. It  appears that the State of Oundh merged in the  erstwhile State  of Bombay and thereafter the Act was extended to  the said  State.   That  is how the  respondents  commenced  the present  proceedings  under the provisions of the  Act  thus extender to the State of Oundh. The  appellants also made an application for the  adjustment of the debt due under the decree in Suit No. 102/1932-33  in the Court of Joint Civil Judge Karad; but in doing so,, they made   it  perfectly  clear  that  they  were   making   the

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application is a matter (-f precaution and without prejudice to  their contention that the equity of redemption had  been extinguished  and  the  parties  no  longer  stood  in   the relationship of creditors and debtors.  In fact, it was  the appellants  the first made the application on May 19,  1949, and the respondents followed by their application on May 105 26, 1949.  For the purpose of hearing these two applications were  consolidated by the trial Court. At  the hearing of these proceedings the  appellants  raised several  contentions.   They  urged that  the  mortgage  was extinguished   and  the  respondents  were  therefore,   not entitled  to  claim adjustment of the debt,  and  they  also contended  that the application made by the respondents  was barred  by time.  The trial Judge rejected  the  appellants’ argument  that the mortgage had been extinguished, and  held that   the  equity  of  redemption  still  vested   in   the respondents.   He,  however, found  ’that  the  respondents’ application for adjustment of the debt was barred by time.In the result, the respondents failed and their application was dismissed. The matter then went in appeal to the District Court,  North Satara.   The appellate Court held that the decree  in  suit No.  102  of  1932-33  amounted  to  a  final  decree  which absolutely  debarred the right of the mortgaging  to  redeem the property in view of the fact that had failed to pay  the decretal  amount within the time prescribed by it.  It  also agreed  with  the  view taken by the trial  Court  that  the respondents  application was barrey by limitation.   In  the result,   the  appeal  preferred  by  the  respondents   was dismissed. The  dispute  the  reached  the Bombay  High  Court  in  its revisional  jurisdiction under s. 115 of the  Code.   Before the High Court it was urged that the Code of Civil Procedure did  not apply to the State of Oundh at the  relevant  time; that  is  why by an interlocutory judgment, the  High  Court remanded the proceedings to the trial Court with a direction that  the issue as to whether the Code of  Civil  Proceedure applied  to the State of Oundh at the relevant time,  should be  tried.  On remand, the trial Court made a  finding  that the Code of Civil Procedure had been made applicable to  the State  of Oundh as far back as 1909-10.  The High Court  had also directed that the issue as to who was, in possession of the property at the relevant time, should be tried; and  the finding returned by the trial Court was that the  appellants were  in  possession  of  the  mortgaged  property  not   as mortgaeges, but as owners from 2nd March, 1937. After these findings were returned, the revision application was  argued before the High Court; and the main point  which was  urged before the High Court at that state  was  whether the  respondents’  right  to redeem the  mortgage  had  been extinguished  by the decree passed in civil suit No. 102  of 1932-33.  The High 106 Court has differed from the District Court and has taken the view  that  the decree did not  determine  the  respondents’ right  to  redeem the mortgage.  In regard  to  the  finding recorded   by  the  courts  below  that   the   respondents’ application was barred by time, the High Court took the view that  the question as to whether the application  is  within sixty years from the expiry of the period prescribed in  the mortgae  deed for repayment is entirely irrelevant  inasmuch as the said application is substantially for the  adjustment of debt under the decree passed in suit No. 102 of  1932-33. On that view of the matter, the High Court has set aside the

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orders  passed  by  the courts below and  has  remanded  the proceedings  to  the trial Court with a direction  that  the application  made by the respondents for adjustment  of  the debt should be tried in accordance with law.  It is  against this  order that the appellants have come to this  Court  by special leave. Before proceeding to deal with the contentions raised before us in the present appeal, it would be convenient to set  out the relevant portion of the decree in suit No. 102 of  1932- 33.  The operative part of the decree reads thus :-               "The plaintiffs should pay to defendants I and               2 Rs. 3,677-12-6 within six months from  today               and  should  recover possession  of  the  suit               property as the heirs of Gopala free from  the               mortgage.  In case the plaintiff,,, do not pay               the  amount  within the prescribed  time,  the               plaintiffs  shall be deemed to have  lost  the               right of redemption for all time". The District Court has held that this decree is a  composite decree  and  on the failure of the respondents  to  pay  the decretal  amount within the time specified. their  right  to redeem the mortgage is extinguished by virtue of the express terms  contained  in it.  The High Court has  construed  the decree  as  a preliminary decree has found that  the  clause purporting  to extinguish the equity of redemption does  not affect  its essential character as a preliminary decree  and does not in law put an end to the relationship of  creditors and debtors between the parties. The  first  question  which falls for our  decision  in  the present  appeal is whether the High Court was  justified  in interfering with the decision of the District Court that the decree  in question extinguished the respondents’  right  to redeem the mortgage.  Mr. Sinha for the appellants  contends that in reversing the conclusion of the District Court,  the High  Court ha-, exceeded its jurisdiction under S.  115  of the Code.  In our opinion’. this contention is  well-founded and must be upheld.  107 The  provisions of s. 115 of the Code have been examined  by judicial  decisions on several occasions.  While  exercising its  jurisdiction under s. 115, it is not competent  to  the High Court to correct errors of fact however gross they may, or even errors of law, unless the said errors have  relation to the jurisdiction of the Court to try the dispute  itself. As  clauses (a), (b) and (c) of s. 115 indicate, it is  only in  cases  where  the  subordinate  Court  has  exercised  a jurisdiction  not  vested  in it by law, or  has  failed  to exercise  a  jurisdiction  so vested, or has  acted  in  the exercise  of  its jurisdiction illegally  or  with  material irregularity  that the revisional jurisdiction of  the  High Court  can  be  properly invoked.  It  is  conceivable  that points  of  law may arise in proceedings  instituted  before subordinate  courts  which  are  related  to  questions   of jurisdiction.  It is well-settled that a plea of  limitation or  a plea of yes judicata is a plea of law  which  concerns the  Jurisdiction of the court which tries the  proceedings. A finding on these pleas in favour of the party raising them would  oust  the  jurisdiction  of the  court,  and  so,  an erroneous  decision  on  these  pleas  can  be  said  to  be concerned  with questions of jurisdicdon which  fall  within the  purview  of  s.  115 of the  Code.   But  an  erroneous decision  on  a question of law reached by  the  subordinate court which has no relation to questions of jurisdiction  of that court, cannot be corrected by the High Court under 115. The  history of recent legislation in India shows that  when

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Legislatures  pass Acts dealing with socioeconomic  matters, or  make  pro-visions  for  the levy  of  sales-tax,  it  is realized  that the operative provisions of such  legislation present   difficult  problems  of  construction;   and   so, sometimes,  the  Act in question provides for  a  revisional application to the High Court in respect of such matters  or authorises a reference to be made to it.  In such cases, the High Court will undoubtedly deal with the problems raised by the  construction of the relevant provisions  in  accordance with  the extent of the jurisdiction conferred on it by  the material   provisions  contained  in  the  statute   itself. Sometimes, however, no such specific provision is made,  and the  questions raised in regard to the construction  of  the provisions of such a statute reach the High Court under  its general  revisional jurisdiction under s. 115 of  the  Code. In  this class of cases, the revisional jurisdiction of  the High Court has to be exercised in accordance with the limits prescribed by the said section.  It is true that in order to afford guidance to subordinate courts and to avoid confusion in  the  administration  of the specific  law  in  question, important  questions  relating to the  construction  of  the operative provisions contained, 5Sup./65-8 108 in such an Act must be finally determined by the High Court; but  in  doing  so, the High Court must  enquire  whether  a complaint made against the decision of the subordinate court on  the  ground  that  it  has  misconstrued  the   relevant provisions  of  the statute, attracts the provisions  of  s. 115.   Does  the alleged misconstruction ,of  the  statutory provision  have  relation  to the  erroneous  assumption  of jurisdiction, or the erroneous failure to exercise jurisdic- tion,  or  the exercise of jurisdiction  illegally  or  with material  irregularity by the subordinate court ? These  are the  tests laid down by s. 115 of the Code and they have  to be  borne in mind before the High Court decides to  exercise its revisional jurisdiction under it. This question has been recently considered by this Court  in Manindra  Land  and Building Corporation Ltd.,  v.  Bhutnath Banerjee  and  Others(1); and Vora Abbasbhai  Alimahomed  v. Haji  Gulamnabi Haji Safibhai(2).  The effect of  these  two decisions  clearly  is  that a  distinction  must  be  drawn between  the  errors  committed  by  subordinate  courts  in deciding  questions  of law which have relation to,  or  are concerned with, questions of jurisdiction of the said court, and errors of law which have no such relation or connection. It is, we think, undesirable and inexpedient to lay down any general  rule  in regard to this position.   An  attempt  to define  this  position  with precision or to  deal  with  it exhaustively  may  create unnecessary difficulties.   It  is clear that in actual practice, it would not be difficult  to distinguish  between  cases where errors of law  affect,  or have  relation to, the jurisdiction of the court  concerned, and where they do not have such a relation. Considering  the point raised by Mr. Sinha in the  light  of this  position,  it seems to us that the High Court  was  in error in assuming jurisdiction to correct what it thought to be  the misconstruction of the decree passed in  civil  suit No. 102 of 1932-33.  As we have already seen, in the present debt  adjustment proceedings, one of the points which  arose for decision was whether the mortgage debt was subsisting at the  time when the respondents made their  application,  and the District Court had found that the respondents’ equity of redemption had been extinguished.  This finding was based on the construction of the said decree.  It is difficult to see

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how  the High Court was justified in reversing this  finding under s. 115 of the Code.  The construction of a decree like the construction of a document of title is no doubt a  point of law.  Even so, it cannot be held to justify the  exercise of the (1) A-I.R. 1964 S.C. 1336. (2) A.I.R.  1964 S.C. 1341. 109 High  Court’s  revisional jurisdiction under s. 115  of  the Code  because it has no relation to the jurisdiction of  the Court.   Like other matters which are relevant and  material in determining the question of the adjustment of debts,  the question  about the existence of the debt has been  left  to the  determination of the court.-, which are  authorised  to administer the provisions of the Act; and even if in dealing with  such questions, the trial court or the District  Court commits  an  error of law, it cannot be said  that  such  an error  of law would necessarily involve the question of  the said  courts’ jurisdiction within the meaning of s.  115  of the Code.  We are, therefore, satisfied that on the facts of this  case,  the  High Court exceeded  its  jurisdiction  in interfering  with the conclusion of the District Court  that the  decree  in question had extinguished  the  respondents’ equity of redemption. This conclusion is enough to dispose of the present  appeal, because the main ground on which the High Court has reversed the  concurrent decision of the courts below dismissing  the respondents’  application  for adjustment of  the  debt,  is furnished by its finding that the decree in question did not extinguish   the  equity  of  redemption  vesting   in   the :,respondents.  In fact, it was as a result of this decision that the High Court reversed the finding of the courts below that  the  respondents’  application  was  barred  by  time. Having  regard to the fact that we are inclined to take  the view  that  the  High Court  exceeded  its  jurisdiction  in reversing the finding of the District Court as to the effect of  the decree in question, we do not think it is  necessary to  consider  the further question as to  whether  the  High Court was right in holding that the decree in question was a preliminary  decree  and  the  clause  which  purported   to extinguish  the  equity of redemption  was  inoperative  and invalid  and  as  much,  it did  not  affect  the  essential character of the decree as a preliminary decree. The  result, is, the appeal is allowed, the order passed  by the  High Court is set aside and that of the District  Court restored.  There would be no order as to costs. Appeal allowed. 110