A.N. Shanmugam and Another vs A.V. Ramanathan Rao

Ramamoorthy, J.—The appellants'' father Natesa Gurukkal filed a suit, O.S. No. 267 of 1979, for the recovery of a sum of Rs. 1,956 on

the basis of a promissory note dated 24.3.1965, executed by defendant, Ramanatha Rao. The plaint was presented on 2.1.1979. The plaintiff

pleaded that the defendant is a debtor and claimed exemption under the various Debt Relief Acts. Therefore, according to the plaintiff, the suit

presented on 2.1.1979 was in time.

The defendant contended, that he had completely discharged the amount due under the promissory note, that he was not a debtor within the

meaning of those Debt Relief Acts and that the plaint presented on 2.1.1979 was barred by limitation.

Learned District Munsif, by judgment and decree dated 26.3.1981 decreed the suit, holding that the suit was in time, that the plea of discharge

had not been established, that the defendant had not proved he was not a debtor and the learned District Munsif did not believe Ex.B-1 to Ex.B-5

filed by the defendant to show that he was an assessee under the Income Tax Act. The defendant preferred A.S. No. 23 of 1981 before the Sub

Court, Tirupattur. The learned Subordinate Judge did not go into the question whether the defendant was a debtor within the meaning of the Debt

Relief Acts on the ground that the plaintiff has not pleaded necessary exemption for the purpose of saving the suit from the bar of limitation and the

learned Subordinate Judge interferred with the judgment and decree of the learned District Munsif and dismissed the suit. The plaintiff''s legal heirs,

who were impleaded in the lower court, have now preferred this second appeal.

The value of the suit for the purpose of jurisdiction was Rs. 1,956. Section 96(4) of the CPC reads, ""no appeal shall lie, except on question of

law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount of value of the subject-matter of the original

suit does not exceed three thousand rupees."" The lower appellate court had assumed that the appeal was filed on a question of law. A perusal of

the grounds of appeal filed before the lower appellate court would show that the appeal was filed on the merits and the plea of limitation is also

taken. The lower appellate court had ignored the position that in order to arrive at the question of law about limitation, assuming it is a pure

question of law, the court has to arrive at a finding whether a defendant was a debtor within the meaning of the Debt Relief Acts. The defendant

did not purport to prefer the appeal on any question of law. Therefore, the appeal before the lower appellate court was not competent.

However, the plaintiffs had preferred this second appeal, as if a second appeal was competent. Section 102 of the CPC reads, ""no second

appeal shall lie in any suit of the nature cognizable by courts of Small Causes, when the amount or value of the subject-matter of the original suit

does not exceed three thousand rupees.

Therefore, the appeal before the lower appellate court, at the instance of the defendant, was not competent. The plaintiffs had preferred the

second appeal on the basis that lower appellate court was competent to deal with the appeal.

Now the position is that the second appeal against the judgment and decree of the lower appellate court is not competent u/s 102 of the Code

of Civil Procedure. As the lower appellate court had entertained the appeal as if it was on a question of law, I am now converting this second

appeal into a civil revision petition and, exercising my suo motu powers u/s 115 of the Code Civil Procedure, I proceed to consider the matter.

Section 115 of the CPC reads as follows:

(1) The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no

appeal lies thereto, and if such subordinate court appears-

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks

fit:

Provided that the High Court shall not under this section vary or reverse any order made, or any order deciding an issue, in the course of a suit or

other proceeding, except where

(a) the order, if it had been in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or

(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it is made.

The High Court shall not, under this section vary or reverse any decree or order against which an appeal lies to the High Court or to any court

subordinate thereto.

Explanation: In this section, the expression ""any case which has been decided"" includes any order made, or any order deciding an issue, in the

course of a suit or other proceeding.

As could be noticed under Clause (a) of Sub-section (1), if the lower court exercised jurisdiction not vested in it by law, this Court can interfere u/s

The position that this Court can exercise suo motu powers cannot be disputed. As early as in 1891, one hundred and three years ago, this

Court had occasion to consider the scope of exercising suo motu powers u/s 622, C.P.C. (corresponding to Section 115 of the present Code) in

Andrew Anthony v. J.M. Du Pont ILR Mad. 217. This Court observed, ""the question then arises whether this Court cannot interfere u/s 622,

C.P.C. without an application from a party. In all probability, the party aggrieved has abstained from action owing to the action taken by the Judge.

There is nothing to limit the power conferred by Section 622 to cases in which there is no application by a party."" This point was again adverted to

by a Full Bench of this Court in the year 1954 incidentally in Katragadda China Ramayya Vs. Chiruvella Venkanraju and Another, . Approving the

decision in Andrew Anthony''s case, the Full Bench posited, ""the powers of the High Court u/s 115, C.P.C. are very wide. Under that section the

High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies

thereto and make such order in the case as it thinks fit. Under this section therefore, the High Court may of its own motion call for any record or

may do so at the instance of a party. It does not preclude the High Court from exercising its powers of re vision suo motu if the other conditions

laid down in the section are satisfied.

The question in the instant case is whether the appeal before the lower appellate court by the defendant was competent. As I said above, a

reading of the grounds of appeal would clearly show that the defendant did not intend to prefer the appeal on a question of law nor did the learned

Subordinate Judge apply his mind to consider the appeal on a question of law. The learned Subordinate Judge has proceeded to consider the

matters as if the appeal was on the merits and all the issues before the learned District Munsif were at large before him. Thus a serious error of

jurisdiction had been committed by the lower appellate court and the lower appellate court had not considered the conduct of the defendant in

taking the plea in the written statement that the suit promissory note had been completely discharged and that was not substantiated by him.

Therefore, interests of justice would demand that I should interfere with and set aside the judgment and decree of the lower appellate court.

Accordingly, the second appeal is treated as a revision petition against the judgment of the lower appellate court. The judgment and decree of the

learned Subordinate Judge are set aside and the judgment and decree of the learned District Munsif are restored. The second appeal is allowed.

The defendant shall pay costs throughout to the legal heirs of the plaintiff.