Nasiruddin Haider vs Hakim Muhammad Tahir and Others

Wort, J.—In this appeal the respondent was the person who in the execution sale of a holding made an application to be allowed to deposit the auction money and prayed that the sale be set aside. What actually was done was that he took out a chalan, did not in fact deposit the money, but applied to the executing Court to be allowed to deposit the money. The question which was decided by the Court before which that application came was whether the respondent had an interest in the property within the meaning of Order 21, Rule 89, Civil P.C. and the learned Judge came to the conclusion that the respondent had no interest of that nature. The only interest, to use the expression in a neutral sense, that the respondent had was that he got a contract for sale, from one of the tenants, of this property who eventually obtained a decree for specific performance; but at the time that he had applied to make the deposit, no conveyance had been executed in his favour.

Having failed before the executing Court he appealed to the District Judge where the decision of the first Court was ''reversed on the point that he had ah interest which would entitle him to deposit the money under Order 21, Rule 89, Civil P.C. A third person who was the purchaser in the auction sale is the appellant before me and he appeals against the order of the District Judge allowing the respondent to deposit the money and setting aside the execution sale. The first point taken by way of preliminary objection is that no appeal lies. The relevant provisions of the Code with regard to that matter are contained in Order 43, Rule 1 so far as regards the appeal to the District Judge. It is clear that so far as that matter is concerned there was an appeal. But I think it is equally clear, and Mr. Jayaswal appearing on behalf of the appellant does not seriously contend that the argument that there is no appeal to this Court is erroneous. But I am asked to deal with the matter under my revisional jurisdiction. The answer to that by the respondent is that an application was made before one of the learned Judges of this Court to revise the order of the District Judge, the application for a rule being rejected on the ground that there was a second appeal, and therefore no application can now be made after the decision on the former occasion. That argument in my judgment is not well-founded for the simple reason that an application for a rule and its rejection does not make the matter res judicata and does not prevent a Court on a subsequent occasion, if the occasion arises, from granting a rule in the interests of justice. Therefore, so far as the preliminary point is concerned, it partly succeeds and partly fails. I said a moment ago that there was no serious contest by Mr. Jayaswal that no second appeal lay. There is some authority however for the proposition that in the event of a District Judge entertaining an appeal without jurisdiction a second appeal would lie to this Court.

Reference is made to the decision in Ramratan Prasad v. Banarsi Lal 1950 Pat 280 as an authority for the proposition. Fazal Ali, J., deciding the case, has stated that there are authorities which establish that proposition. But I must confess that the authorities upon which the learned Judge relies certainly do not meet the point with which I have to deal: in other words, that although by statute no appeal lay the circumstances surrounding the case will in any way affect the statute. I have very little hesitation in coming to the conclusion in this case that no appeal lay both on the grounds stated in the decision referred to and on the ground which Mr. Jayaswal advances before me. I cannot for a moment think that a wrong decision, even though it relates to jurisdiction, would give a right of appeal where otherwise no appeal lay. But in this case, even assuming that proposition to be well-founded, that is to say, there is a second appeal to this Court, it would in this case depend upon a number of facts and the construction of Order 21, Rule 89 which, to say the least of it, is a highly technical one. What happened was that the person seeking to deposit the money took out a chalan for the amount to be deposited, and, without actually depositing it in Court, applied to the Judge to allow him to make the deposit, and in his petition claimed to have the sale set aside. Now the learned Judge refused the application and I think it will be taking a very technical view of the CPC and indeed straining the language of the statute to suggest that he had not done what was required of him, that is to say, the applicant, and that the effect of the order of the Judge was not an order refusing to set aside the sale. To put it more precisely Mr. Jayaswal contends that what was necessary was the actual deposit of the money and then an application, and that no application was competent until the deposit had been made. I have considered the matter very carefully both in the light of the language used by the order and the decision of this Court relating to a deposit, which so far as its amount is concerned was short by a small sum of money, and I have come to the conclusion that the contention is not well founded.

The rule is slightly ambiguous. The words used may apply to have the sale set aside on, his deposit in Court etc It may be read as meaning that on his depositing the sum in Court he may have the sale set aside on an application, or at the moment he could apply to the Court to have the sale set aside on his depositing, that is to say, when he does deposit a sum of money. That is to say both the application and the deposit have to be made, quite clearly from the order itself and from the authorities within thirty days. To put it in other words, it is competent for the Court to decide the matter on its ascertaining whether the application is a bona fide one. If the circumstances show that the applicant is ready to deposit the sum, the Court can entertain the application always provided of course that he has an interest by virtue of title. In my judgment, so far as the jurisdiction of the District Judge to entertain the appeal is concerned, the objection is not well-founded; and I have already decided that the objection of the respondent as to the revisional jurisdiction is not well-founded. This leaves me in the position to deal with the matter under my revisional powers.

Now the substance of the matter that is left is the question of whether the person (i.e. the respondent) desiring to deposit the money is a person who has interest by virtue of his title acquired before the sale. So far as the dates are concerned there is no doubt that he is a person who comes within the meaning of the rule, but the question of whether he has a title and interest by virtue of a title (to use the words of the order) is quite another matter. Mr. Jayaswal and Mr. Mitter both argue for and against the existence of a title and also as to whether this matter strictly comes within Section 115, Civil P.C. I propose to deal in the first instance with the question of title. Mr. Das, the District Judge, seems to think that because a decree was obtained in the Court below for specific performance, the applicant was in a better position from the point of view of his title than he was before the decree. To use the words of the District Judge he was on surer ground. He got something little bit bettor than a contract; the Court had pronounced on it, and it was indefeasible. No one therefore could question it and the effect of the decree was to have his contract specifically performed: There was an order of the Court to perform the contract specifically. But quite apart from the proposition of law, if as a fact he could have his decree executed and it was necessary to have his decree executed if the judgment-debtor did not comply with the order of the Court, bow can it be said that he had any title because the conveyance was what would give him his title. But if it was necessary to obtain his conveyance by execution or otherwise, it quite clearly shows that he had up to that moment no title, although he had the solemn pronouncement resulting from the judgment or decree. But on a surer ground, on the question of fundamental principles of law, the matter is quite clear, as it has been pointed out, that under the English law a person holding a contract has an equity or equitable title but not a title in law. But that principle is not applicable in this country. The Transfer of Property Act is quite clear on the point. The contract does not give any interest in the land, and the only question to be asked is, what is the effect of a judgment? A judgment does not give title; it gives a right of execution to specific performance of that contract, the judgment having pronounced upon all the possible issues which arise not as to the title but as to the validity of the contract itself. On first principles therefore it is quite clear in my judgment that the applicant before the Court below had no title at the time that he had to deposit the money and, if the case depended upon that, there could be only one conclusion to be arrived at in this application before me.

The point, however, arises as to whether this is a question which goes to the jurisdiction of the Court. It is contended that as the applicant had no interest, the District Judge had no right to decide in his favour, in other words, he had no jurisdiction to do so. Now if it does go to the jurisdiction of the Court, there is no doubt as to the result. But the matter, I think, is concluded by a statement of Lord Atkinson in the well known case of Bala Krishna Udayar v. Vasudeva Aiyar 1917 PC 71 who, in delivering the opinion of their Lordships of the Privy Council, referring to Section 115, said this:

The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved,

] 7. Now those words have been referred to in numerous cases and I think there is no doubt as to their meaning, nor, in my judgment, do I think there can be any doubt about the meaning of Section 115, C.P. Code. If a Judge assumes jurisdiction of the matter and proceeds to decide a question of law, however erroneous the decision may be, this Court cannot interfere. But if before assuming jurisdiction he determines a question of law or fact to determine the question of jurisdiction, a wrong decision in a case of this kind is certainly revisable by this Court. But the District Judge (erroneously as I have held), deciding this question of whether the applicant had interest, was not deciding a question relating to his jurisdiction at all, but he was deciding whether the particular applicant had a locus standi, and that most certainly a Judge had jurisdiction to determine, although he might have decided it erroneously which, in my judgment he has. It leaves this Court quite helpless so far as an interference with that order is concerned. Quite apart from those views, the justice of the case demands that this Court should not interfere even had the view as to jurisdiction been otherwise. The rule must therefore be discharged.

On second consideration I cannot give leave to appeal on the first point as to jurisdiction, and on the merits as the case has been treated as a revision, there can be no question of appeal under Letters Patent.