Muthiah Chettiar and Another vs Bava Sahib and Others

Oldfield, J.—This appeal and the Revision Petition relate to an Order by the District Munsif which the District Judge has confirmed, setting

aside a sale in the following circumstances. The decree under execution directed the sale of items in a particular order, and the sale proclamation

followed it. They were however sold in a different order, and the sale was confirmed. The judgment-debtor then moved the Court successfully

under Order XXI, Rule 89 of the Code of Civil Procedure. After an appeal against the order dismissing that petition had failed, he applied under

Order XXI, Rule 90 of the Code of Civil Procedure, obtaining an order excusing his delay in doing so. The District Munsif held that no case for

interference under that rule had been established, but set aside the sale in the exercise of his inherent powers. The learned District Judge in the

Order under appeal held that the delay could not be excused with reference to Sections 5 and 14 of the Limitation Act, but that the exercise of the

Civil Courts inherent powers was not subject to the law of limitation and was justified by the circumstances of the case. He confirmed the District

Munsif''s order without deciding explicitly whether there was irregularity in the conduct of the sale or consequent loss, either with reference to Rule

89 or generally.

The existence of the inherent powers of Courts was first recognised by statute in the present Code, though it has frequently been the basis of

decisions. It is necessary to scrutinise cases, in which it is relied on, closely in order that it may not, owing to that recognition or otherwise lead to

arbitrary disposals, actuated by individual sentiment or mere disinclination for the exertion invoked in investigation of the law. It is necessary in

order to such scrutiny here to ascertain what the necessity was for resort by the judgment-debtor the petitioner before the District Munsif and the

1st Respondent here, to the inherent powers of the court; that is what remedies he had under the CPC and what obstacle by way of limitation or

otherwise there was to his taking them. The Appellant''s contention is shortly that he had his remedy under 0. XXI, Rule 90 or Section 47 of the

Code of Civil Procedure, but lost it through his delay, and that in such circumstances the use of the court''s inherent powers for his benefit is not

justified.

Order XXI, Rule 90 of the CPC deals with the circumstances in which sales may be vitiated by irregularity in their conduct; and here no doubt

the complaint was that the court had no jurisdiction to sell as it did because the decree under execution authorised it to sell item 3 only after item 4,

instead of, as it did, before it. There was therefore it is argued, not an irregularity to which Rule 90 applied but an illegality. Now it is doubtful

whether this distinction is open to the 1st Respondent who proceeded statedly under Rule 90. Vide Venkata v. Sama ILR (1890) M. 227 and

(1893) ILR 21 66 (Privy Council) but I pursue that argument no further, because if the proceedings are not under Rule 90 they were certainly u/s

In the former case it would have been necessary for the 1st Respondent to prove substantial loss. But in both cases he would have been out of

time.

It is not disputed that his petition was presented too late, if it was one under Rule 90. If however it was u/s 47 it is urged that Article 181

Schedule II of the Limitation Act applied and he was in time, the special Article No. 166 covering only applications under Rules 89 and 90. This

restriction of Article No. 166 corresponds with nothing in its wording, which is absolutely general; and the attempt to impose it has been supported

by reference to the fact that the article was substituted for Articles Nos. 166 and 172 in the prior Act of 1877, which related only to applications

under Sections 310 A and 311 of the Code then in force. It is stated that this is borne out by the Statement of Reasons and Objects connected

with the present Act. But it has not been shewn how reference to such a statement is a legitimate or necessary aid to the interpretation of a

provision, the language of which is clear. The 1st Respondent''s application, though it may have been made u/s 47, was one. to set aside a sale,

and under Article 166 it must be held to have been out of time.

It is not contended here that if the application is subject to the Limitation Act, either Section 5 or Section 14 would have enabled the District

Munsif to excuse the delay in its presentation.

The questions are whether (1) the inherent powers of the Court can be invoked for an object, which resort to its statutory powers could have

secured, (2) whether such invocation is subject to any limitation. It may be stated at once that, as (1) must be answered in the negative, there is not

likely to be any authority dealing with (2). It is only necessary to add that no doubt Article 181 Schedule II of the Limitation Act, the general article

is not exhaustive vide Devidas Jagjiran v. Pirjada Begam ILR (1884) B 377 and Dwarka Nath Misser v. Barinda Nath Misser ILR (1896) C.

The cases exempted from it form a well defined class to which further reference will be made, those in which the inherent power exercised is

ministerial or impliedly necessary in order to the performance of the Courts'' stautory duties.

As regards (1) reliance has been placed mainly on a very widely expressed dictum in Syud Tuffuzzool v. Ragoonath Prasad (1871) 14 M.I.A.

40 and its adoption in Gurdeo Singh v. Chandrikah Singh (1907) Cri.L.J. 611 ""To proceed as far as the practice of this Court will allow him, to

recall and cancel an invalid order is not simply permitted but is the duty of a Judge, who should always be vigilant not to allow the act of the Court

itself to do wrong to the suitor."" By this general statement what did their Lordships of the Privy Council intend to decide ? Firstly it may be doubled

whether their reference to the practice of the Court was not intended to safeguard the Court''s duty to respect, not only the practice but also the

law. And next though the application of the dictum is somewhat obscure, it is doubted whether it was meant to authorise the unconditional license

for which 1 st Respondent argued. As appears from the statement of facts, there has been a sale alleged (without contradiction) to have become

absolute, of property, which no Court could sell. The Judge set the sale aside, of his own motion though he afterwards heard the purchaser. The

observation quoted was made in appeal against the decision in the latter''s suit to enforce his right under the sale; and it apparently meant no more

than that he could not disregard the order of attachment and rely on the absolute character of the sale, since the discussion of the merits, which

follows, could not have been necessary on any other interpretation. It did not mean that such an order of cancellation created or annihilated rights

or was more than declaratory ""of the void nature of a transaction which was void ab initio; and there was no question raised of the order having

been passed under any procedure similar to that u/s 47 or of such procedure being available to the aggrieved person. In the other case referred to,

it was not suggested that there was any question of the statutory powers of the Court, by the use of which the same result could have been

reached; and it may (with all due respect) be doubted whether the reference to the Court''s right to recall an erroneous order was necessary or

justified, since (for all that appears) the-order of transfer to the file of the District Court, which was in question, was proper when it was passed,

and a re-transfer appeared necessary on the latter. The case then, as the Judgment also specifies really fell under the other heading of the exercise

of inherent power already referred to, that recognised as legitimate in cases not provided for by statute. There again there was accordingly no

question, as there is in the present case, of a form of procedure available of which advantage has not been taken.

The distinction between the use of inherent powers proposed in the present case and that, which is permitted in cases not contemplated by

statute, may be illustrated by contrast between two sets of decisions, in both of which the cancellation of erroneous orders was in question. In the

first Badaricharya v. Ramachandra (sic), Ram Singh v. Babu Kisan-Singh ILR (1898) B. 116 and Ramachandra v. Draupadi (sic) a Court,

constituted by special enactment, to whose procedure the CPC did not apply, was in question and recourse was permitted to its inherent powers

to justify a review and its Betting aside of an order passed ex parte. But in, the case of courts subject to the Code of Civil Procedure, it has been

held that they are bound by its provisions. In Reasut Hussain v. Hadjee Abdoollah (1876) L.R. 3. I. A. 221, the District Judge had recalled his

erroneous order statedly on the ground that he could do so notwithstanding the absence of "" any rule laid down for such a (sic) in the Registration

Act under which this first order was passed. But the Privy Council holding that the Code of Civil Procedure, applied, devoted its judgment to

bringing the case within its provisions. In Ram Kripal Shukud v. Mussumat Rup Kuari (1883) L.R.11 IndAp 37 inherent powers were not

mentioned but it was held that the adjudication of a competent Court could not be set aside or disregarded by a Superior Court except in an

appeal properly preferred. And in Chandi Charan Laha v. Monoranjan (1918) Cri.L.J 425 the grant of a review on grounds other than those

contemplated by Order 47, Rule 1 and in the exercise of inherent powers was held to be unsound; the proper course being to leave the party to

seek his remedy in appeal.

The principle to be deduced from the cases referred to and others is clear, that the inherent powers of the Court are not to be used for the

benefit of a litigant, who has his remedy under the Code of the Civil Procedure much less than one, who haying his remedy has lost it by his own

delay. The result is that the decisions of both the lower Courts must be set aside; the appeal against Appellate order being allowed with costs

through out. The case falling u/s 47 the Civil Revision Petition is unnecessary and is dismissed. There will be no order as to costs.

Tyabji, J.

It is admitted that the execution sale was not in accordance with the terms of the decree, inasmuch as the decree required that the third item of

the property should be sold after the 4th but the 3rd. was actually sold before the 4th.

It was not contended on behalf of the appellant that there was no remedy open to the Respondent. It was suggested that a suit; may be

available to him but that Order XXI Rules 89 and 90 provided for cases in which sales could be set aside. That Section 47 of the CPC provided

for the forum and the method by which those rights were to be enforced; and that as the present case did not come within the terms of those

provisions of a self-contained Code, the Court could not add to these provisions any more than to the rules relating to res judicata; Gokul Mandur

v. Padman Singh ILR 29 C.707. The answer to this argument seems to mere to be that, though the result in this case may have to be brought about

by setting aside the sale to which process (Section 47 and rr a 89 and 90 of Order XXI apply) what is sought to be done is primaration rectify a

wrong procedure followed by the Court. The power to rectify their own manifest errors of the kind here in question it seems to me Courts must

always have. I am therefore of opinion that the Courts were right in considering the case to fall within their inherent jurisdiction. Syud Taffzzool

Hussain v. Raghonath (1871) 14 M.I.A. 40. I entirely agree, however, with my learned brother that the inherent jurisdiction of the Court is not to

be used so as to lead to arbitrary disposals actuated by individual sentiment or the mere disinclination for the exertion involved in the investigation

of the law.

The next question is whether the application was barred by limitation. In any view the error was of a nature similar to that in the cases cited by

me and it was within the power and subject to what I am about to say it was the duty of the Court to set its procedure right when its error was

brought to its notice. In my view therefore Article 166 of the Limitation Act does not directly apply.

But though the bar of limitation would not, in my view be directly applicable, it seems to me that the Courts would not only be justified in

considering the question in the light of the period of limitation allowed by the legislature for applications resulting in a similar way, but that for the

reasons I am about state, the Courts are bound to consider it in their light. Athikarath Nanu Menon v. Erathanikat Komu Nayar ILR (1807) M.

Taking the facts of the present case it seems to me that though there was an error which the Court would have been justified in rectifying of its

own motion it was incumbent on it to consider whether the error having been committed, it would be proper to exercise a discretionary jurisdiction

arising from its inherent powers. The express inherent powers implies that the power is not conferred by or affected by an act of the Legislature

where the Jurisdiction of the court is expressly given by the legislature, it is the legislative jurisdiction that arises and there is no room for speaking

of the inherent jurisdiction. In deciding the question whether the Court will exercise its inherent powers it may well proceed on the basis that if the

party aggrieved by the error of procedure has acquiesced in the error and has not chosen to apply t6 the Court with due diligence, his laches

would not indeed deprive the Court of the inherent jurisdiction to set right its own error; but indicate that it might be a greater error to set about

rectifying a long past error to the detriment perhaps of persons who have honestly proceeded on the basis that the action of the Court was right.

Such conduct of the party alleging himself to be aggrieved would also point to the injury suffered by him haying been slight. The Court may

reasonably take as a guide for the standard of the. diligence to be exercised by the parties concerned the provisions of the Indian Limitation Act:

and for its guidance as to circumstances which would justify interferences, the provisions of law contained in regard to matters most nearly

analogous to those brought in question by reason of the Courts'' inherent powers. This will prevent ""arbitrary disposal in the manner above referred

to. In the present case by analogy it seems to me that the Courts would have been right in guiding themselves by the pro- visions of Article 166 of

the Indian Limitation Act and Order XXI, Rules 89 and 90 of the Civil Procedure Code.

Considering the question in this light I find that there were applications by the Respondent under Order XXI, Rules 89 and 90 both of which

were dismissed, and in the course of the decision in the latter (which alone is printed for our use) it is stated that no case for relief under Order

XXI, Rule 90 was established by which I understand that no substantial injury had been sustained by reason of the irregularity in the sale.

In such a case it seems to me to be clear that the courts exercised their inherent jurisdiction wrongly and their order setting aside the sale

should be reversed, I agree therefore in the order proposed by my learned brother.