Hemendra Chandra Mullick vs Ballavi Devi and Another

Agarwala, J.—In execution of a money decree obtains by Kedar Nath Ghosh against Jangeswar Pande for Rs. 1,109, in the Court of the Munsif of Dhanbad, the decree-holder attached a house which he alleged to belong to the judgment-debtor. Mt. Ballavi Devi, the daughter of the judgment-debtor, thereupon applied for release of the property stating that it was hers. The claim was overruled and the claimant then instituted a suit to establish her title to the property and prayed for stay of the sale pending the disposal of the suit. The Court directed that the sale would be stayed provided the claimant deposited one year''s interest on the decretal amount.

She failed to do this with the result that the property was put up for sale on 21st September 1928, and purchased by Hemendra Chandra Mullick for Rs. 1,0-44-10-0. The purchase price was deposited in Court and withdrawn by the decree-holder. Delivery of possession of the property was given to the auction-purchaser in February 1928 Ballavi Devi''s suit was dismissed in August 1929, but on appeal to the District Judge the suit was decreed in September 1930. She then applied to the Munsif of Dhanbad to be restored to possession of the house, possession of which had already been given to the auction-purchaser. She also applied for mesne profits for the period during which she was out of possession and for compensation for damage which she alleged had been caused by the auction purchaser while he was in possession.

The first Court held that the application was covered by Section 144, Civil P.C, and that the applicant was entitled to the reliefs prayed for The amount of mesne profits and compensation was left to be determined by a Commissioner. Against that order the auction-purchaser appealed to the District Judge who held that, even if the application was not governed by Section 144, Civil P.C. the Court had inherent power u/s 151 of the Code to make the order appealed against. In second appeal it is contended by the learned advocate for the auction-purchaser appellant that Section 144 has no application to the facts of the case. With that contention I am in agreement. Section 144 applies when the decree, in execution of which a person is dispossessed, is reversed or varied. In the present case the decree passed by the Munsif of Dhanbad in the money suit of Kedar Nath has neither been reversed nor varied.

It was next contended that the Courts below had no jurisdiction to invoke the inherent powers because Ballavi Devi had another remedy by suit, and reliance was placed on those cases which have held that the Court will not exercise the inherent powers in favour of a party who has another remedy available to him. In particular reliance was placed on the decision in Tatanagowdra Bhimana Gowd and Others Vs. Patel Siddalingana Gowd, . In that case a suit was instituted for declaration of the plaintiff''s title to property from which he had been dispossessed in execution of a decree.

The plaintiff also prayed to be restored to possession but did not ask for mesne profits. The suit was decreed and possession was delivered to him. Thereafter he marie an application u/s 144, Civil P.C., for mesne profits. This application was rejected by the trial Court. The plaintiff then made an application in revision against the order rejecting his prayer. The High Court held that as the plaintiff had a remedy by suit for recovery of the mesne profits the application was not maintainable.

The rule that the Court will not exercise its inherent powers when another remedy is open to the aggrieved party has been established in a number of cases to which it is not necessary to refer in detail; but that rule, in my opinion, is not invariably applicable to a proceeding to obtain restitution and relief consequential upon the restitution. In such a case the aggrieved party has been injured by an erroneous order of the Court and, as was observed by Lord Cairns in Rogers v. Comptoir D'' Escompte De Paris (1871) 19 WR 449:

One of the first and the highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors and to make and vary any order which was fairly and properly consequential upon the reversal of the original judgment.

When, as in the present case, the Court has put up for sale, as the property of the judgment-debtor, property which in fact did not belong to the latter but to some one else, and the rightful owner is deprived of possession, it is the duty of the Court to restore the rightful owner to the position which he would have occupied but for the erroneous order; for

it is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties involved": see Jai Berham v. Kedar Nath Marwari AIR 1922 PC 269 (at p. 16 of 2 Pat.).

When a Court in consequence of its own erroneous order ousts the rightful owner from the possession of property which belongs to him and places another in possession, it is the action of the Court which causes the injury to the aggrieved party and it is to the Court that the latter is entitled to look for redress.

No suit lies against the Court. The proper remedy if the case is not one falling within Section 144, Civil P.C. is by exercise of the Court''s inherent powers. In my opinion, not only was the order made by the Courts below an order which it was within the jurisdiction of the Courts to make, but it was the most appropriate order in the circumstances of the case. The present appeal fails because the order appealed against was made in the exercise of the Court''s inherent powers and so was not appealable: see Ram Ratan Prasad and Others Vs. Banarsi Lal and Others, . Viewed at as an application in revision, it fails because in my opinion the Court had jurisdiction to make the order and the order made was a proper one. The appeal as a result is dismissed with costs to the respondents throughout.

Macpherson, J.

I agree.