Gorelal Ramlal vs Motilal Sobhagmal and others

Gulab C. Gupta, J.

This civil revision filed u/s 115 of the CPC is by the judgment-debtor whose 23.17 acres of land has been sold in execution of a decree against him by mistake and in spite of the Order dated 17-7-1976 of the Executing Court to sell only 4.98 acres.

It appears that the non-applicant No. 1 Motilal filed a suit in the Court of Small Causes against the applicant and obtained a decree for a sum of Rs.437/- only. The applicant deposited Rs. 50/- on 20-3-1978 but failed to pay all the decretal amount. Since the decree was put in execution, the applicant''s entire agricultural holding of 23.17 acres was attached. Thereafter, the non-applicant decree-holder himself applied to the Court that decree would be satisfied only by selling land forming part of khasra no. 197 and measuring 4.98 acres. On this application the Executing Court passed an order dated 17-7-1976 directing that only khasra no. 197 be sold in execution of the decree. Inspite of the aforesaid order, the entire holding was auctioned and ultimately purchased by the non-applicant no. 2 for a sum of Rs. 2,000/- only. On this the applicant made an application to the Executing Court u/s 151, CPC praying for setting aside the sale. In this application the applicant also submitted that he has paid the decretal amount to the decree-holder and thereby satisfied the decree. The Executing Court was of the view that the applicant knew the entire proceedings and yet did not take any objection as required by law. According to the learned Executing Court, the sale has been confirmed on 7-2-1979 and hence he cannot now be heard in the matter. It was also the view of the Executing Court that objection to the sale can be taken only in accordance with Order 21 of the Code and since those objections were not taken under those provisions, remedy u/s 151, CPC is not available. The application was accordingly dismissed. That is how the matter is in this Court in the present Civil Revision filed u/s 115 of the Code of Civil Procedure.

At the very outset it must be mentioned that the applicant has either been negligent or over-confident about the procedure adopted by the Executing Court. There is no dispute that only 4.98 acres of land should have been sold as ordered on 17-7-1976. In spite of it, the entire holding of 23.17 acres has been sold. The applicant had, no doubt the right to object to such sale, and he has not utilized those opportunities either because of his own negligence or his confidence in the efficacy of the rule of law. The question, however, is whether the Court having violated its own order should feel helpless in remedying the wrong and removing the cause of injustice ?

It is well settled that every Court is constituted for the purpose of doing justice according to law and must be deemed to possess, as a necessary corollary and as inherent in its very constitution, all such powers as may be necessary to do the right and to undo a wrong in the course of administration of justice. Section 151, CPC only expresses such power in clear and unambiguous term and indicates the intention and desire of the legislature to see that justice is done in every case. It is true that it has been held by various decisions of the Supreme Court and this Court that in sofaras the matter in question in any particular case or topic, falls within the ambit of the express provisions of the Code, the inherent powers of the Court to that extent, be regarded as abrogated by the legislature. The Court cannot have recourse in such cases to inherent powers. Nain Singh Vs. Koonwarjee and Others, , Ramkarandas vs. Bhagwandas, AIR 1965 SC 114 and Dulichand Bhuraji vs. Chainsingh Bachusingh, 1966 MPLJ 65 . In spite of it, it has always been accepted that the Court has inherent power to recall its own orders and correct its own mistakes. Keshardeo Chamria Vs. Radha Kissen Chamria and Others, . Applying these principles it has been held drat the rules in Order 21 and Order 41 relating to the stay of execution do not exhaust cases in which stay can be granted and the Court can, under its inherent powers, stay its own process except where its jurisdiction is taken away. ( H.S. Vodayar Vs. The Vijaya Bank Ltd. and Another, , Baza''at Ahmad Vs. Ali Hussain and Others, and J.C. Galstaun Vs. F.E. Dinshaw and Others, . Similarly, it has been held that Courts have inherent powers to set aside or refuse to confirm an execution sale in cases not provided for by Order 21, Rules 89 to 91, (Brij Mohun Thakoor and another vs. Rai Uma Nath Chowdhary and others, 19 Indian Appeals 154 (P.C.), Fatima Sultana vs. J. Eswaraprasad, AIR 1977 A.P. 55 and Syed Abrar Ahmad Anwar Ahmad vs. Babulal Narmada Prasad, 1968 M.P.L.J. 293). Similarly in Pankaj Kumar Pakihira vs. Nani Bala Pakhir, ILR 1968(1) Cal 43 a Division Bench of Calcutta High Court has held that Court can set aside execution sale under its inherent powers for material irregularity or fraud even when the applicant though vitally interested in the property has no locus standi to make the application. More or less similar view has been taken in A.P. Ismail Rowther Vs. Mynoon Bivi and Others, . These decided cases clearly bring out the principle behind the inherent power of the Court which is to remedy the injustice and sufficiently indicate that this power has always been utilized when the injustice is caused because of an action of Court. This what the maxim actus curiae meminam gravabit means and purports to assure. "An act of Court shall prejudice no one" had been the basic foundation of every civilized jurisprudence from the beginning and there is no reason why we should think that our jurisprudence does not give effect to the policy of the law. Indeed, the aforesaid decided cases should sufficiently establish that this principle has been zealously followed in this country. That appears to be reason why the Supreme Court in Krishna Kumar Narula etc. Vs. The State of Jammu and Kashmir and Others, held that an order passed by the Court in execution ignoring stay proceedings can always be corrected.

Let us then examine the facts of the case in the context of aforesaid law. There is no dispute between the parties that on the application of the decree-holder himself the Court directed by its order dated 17-7-1976 that only khasra No. 197 measuring 4.98 acres alone should be sold. In the context of this order, it becomes the responsibility of the Court to see nothing more is sold. If in spite of it, the applicant''s entire holding has been sold, it should be the duty and responsibility of the Court to correct and do justice. The Court should not feel helpless in such cases only because no one has objected to such a sale. It is true that such a sale would have been stopped or set aside if an objection was properly taken by the applicant. But this should not be the end of the matter as what is at the stake is the efficacy in our system of administration of justice. The basic principle that an act of Court should not prejudice any one cannot be overlooked or else the whole purpose of conferring inherent powers in the Court would be frustrated In this view of the matter, this court is not able to appriciate the helplessness of the Executing Court in the matter which is expressed in the following sentence appearing in the impugned order :-

Once it is realised that the said injustice or ZIADATI has been done by the Court itself, the aforesaid helplessness should cause concern. This Court is however, unable to subscribe to the aforesaid view. It is, on the contrary, of the opinion that the Court has full authority and jurisdiction to exercise its power u/s 151, CPC and remove the cause of injustice.

In this view of the matter, the revision succeeds and is allowed. The sale of entire holding of the applicant being contrary to the Court''s order dated 17-7-1976 is set aside and the Executing Court is directed to proceed with execution of the decree afresh in accordance with law. No orders as to costs.