Parasurama Ayyar and Another vs Seshier and Others

The first Appellant, first Petitioner, was decree-holder in Original Suit No. 11 of 1886. The first and second Respondents, first and third

counter-Petitioners, were decree-holders in Original Suits Nos. 18 and 29 of 1887. These decrees were against the same judgment-debtor. In

execution, the Petitioners realized a net amount of Rs. 22,944-5-0, of which Rs. 271-14-0 were the proceeds of sale of moveables and the rest,

Rs. 22,672-7-0, was realized by sale of immoveable. The District Judge, proceeding u/s 295, Code of Civil Procedure, determined by his order

dated the 4th October 1895, in Civil Miscellaneous Petitions Nos. 189 and 190 of 1895 that the first Petitioner, Parasurama Iyer, was entitled to

Rs. 11,727-12-4 and the counter-Petitioners were entitled to Rs. 11,216-8-8 on a ratable distribution. In arriving at this conclusion the District

Judge allowed the counter-Petitioners a share as regards the two decrees in Original Suits Nos. 18 and 29 of 1887 in the proceeds realized from

both moveables and immoveable. In appeals against orders Nos. 17 and 18 of 1896 this Court decided that as to Original Suit No. 29 of 1887

the Defendant was entitled to share only in the proceeds realized on moveable property, but as to Original Suit No. 18 of 1887 the Defendant was

entitled to share in the entire amount realized.

The entire amount realized in execution had been paid to the Petitioners (Appellants), and pending the decision of the appeals against orders

Nos. 17 and 18 of 1896, the District Judge proceeded to realize by summary process from the Petitioner the amount referred to in his order dated

the 4th October 1895. Six items of property were attached and sold on the 27th January 1896 for Rs. 8,710. The sale was confirmed on the 28th

August 1896. The counter-Petitioners are the purchasers. In consequence of the decision in appeals against orders Nos. 17 and 18 of 1896, it

followed that a very much smaller sum was due to the counter-Petitioners than was settled on the 4th October 1895, namely, Rs. 11,216-8-8. The

actual sum now found to be due to the counter-Petitioners on a correct ratable distribution is Rs. 6,739-0-7.

As regards the figure 6,739-0-7 we are of opinion that the District Judge is correct when he states in paragraph 4 of his order now under

consideration: ""In other words practically all this Court has to do in respect of appeals against orders Nos. 17 and 18 of 1896 is to make a

redistribution of the assets realized in execution of the decree in Original Suit No. 11 of 1886, and this the District Judge has done correctly in

paragraphs 4, 5 and 6 of the order.

The main point now to be considered is whether this Court can now order restitution of the six items of property brought to sale and purchased

by the counter-Petitioners on the 27th January 1896. It will be observed that the sale took place to recover Rs. 11,000 and odd, whereas after

appeal the amount really due has been found to be only Rs. 6,000 and odd and the proceeds of sale was over Rs. 8,000.

This District Judge is of opinion that, as the sale ""was held in order to realize an amount that was really due, though this amount was not so large

as it was then supposed to be, and was long ago confirmed, the sale cannot be set aside as having been a nullity as prayed for, and all that the

Petitioners are entitled to in respect of it is the balance of the amount realized that remains after paying off the amount it was rightly held to realize.

That the Petitioner is entitled to restitution is clear. In what way ought he to get it? Should the entire sale have been set aside or only so much of it

as was not necessary to satisfy the claim (it appears the property was sold in lots), or is the view of the District Judge to be accepted? This is a

case of restitution as between the parties to the proceeding. The principle to be followed is this: ""The Court in making restitution is bound to restore

the parties so far as they can be restored to the same position they were in at the time when the Court by its erroneous action had displaced them

from it."" The leading case on the point of restitution is Zain-ul-abdin Khan v. Muhammad Asghar Ali Khan I.L.R., 10 All., 166. The actual point

therein decided is that a sale in so far as it is unnecessary to satisfy the decree passed on appeal is illegal when the Defendant is the purchaser.

Following the principle laid down in this case, a Bench of this Court recently stated that, in the case of decree-holders purchasing, the purchase is

subject to the final result of the litigation. There is no authority for the contention on behalf of the Appellant that, when the property is knocked

down for a sum equal to, or less than, that eventually found due, the rule has no application (vide Syed Nathadu Sahib v. Nallu Mudaly (I.L.R.

Mad. 98). In the particular case that we are now considering, the entire property sold realized more than was due under the District Judge''s order.

There can be no doubt therefore that, following the Privy Council decisions, at least, the sale must be considered illegal in so far as it was

unnecessary, and it seems to us that probably it was entirely illegal.

But it is argued for the counter-Petitioners that, even if the District Judge was wrong in holding that the sale was not invalid, his order cannot be

appealed against or revised u/s 622, Code of Civil Procedure. We think that the objection that no appeal lies is well founded. We cannot ""assume

that there is a right of appeal in every matter which comes under the consideration of a Judge: such right must be given by statute, or by some

authority equivalent to statute"" (Minakshi v. Subramanya (I.L.R. Mad. 26). Section 647, Code of Civil Procedure, does not confer any right of

appeal not expressly given elsewhere by the Code (Raja v. Srinivasa (I.L.R. Mad. 319).

The order of the District Judge is not a decree. The parties are not parties to a suit. The order is not one from which a special right of appeal is

allowed by the Code. Kashi Ram v. Mani Ram I.L.R All. 210 is in point. It remains to be seen whether the matter can be dealt with u/s 622, Code

of Civil Procedure. The Respondents contend that it cannot and seeing that the District Judge had jurisdiction to decide wrongly as well as rightly

(Malkarjun v. Narhari ILR 25 Bom. 337) we think there is no doubt this contention must prevail. In Rajah Amir Hassan Khan v. Sheo Baksh

Singh I.L.R.IndAp 237 the Privy Council state ""The question then is, did the Judges of the lower Courts in this case, in the exercise of their

jurisdiction, act illegally or with material irregularity. It appears that they had perfect jurisdiction to decide the question which was before them and

they did decide it. Whether they decided it rightly or wrongly they had jurisdiction to decide the case and even if they decided wrongly they did not

exercise their jurisdiction illegally or with material irregularity."" This decision of the Privy Council was considered by a Full Bench of five Judges of

this Court (vide Manisha Eradi v. Siyali Koya ILR Mad.220). ""It was argued before the Privy Council that the words ''act illegally or with material

irregularity in the exercise of its jurisdiction'' did not comprehend eases of erroneous decision. The judicial committee upheld the contention."" And

again at page 229: ""There is also no doubt that the words ''act illegally or with material irregularity in the exercise of its jurisdiction'' must be taken,

on the authority of the Privy Council, not to comprehend erroneous decisions in cases which the Sub-Court has jurisdiction to decide but to refer

to what goes before and to the mode in which the lower Court comes to the conclusion either that it has or has not the jurisdiction."" If further

authority is required the case of Muhammad Yusuf Khan v. Abdul Rahiman Khan ILR IndAp 104 can be referred to. ""Section 622, Code of Civil

Procedure, does not authorize the Court acting thereunder to order that a final judgment of a competent Court from which no appeal is allowed by

law should be set aside.

The District Judge had jurisdiction in this case. He has decided wrongly, it may be. There is no right of appeal. This Court cannot revise the

order. We dismiss the appeal with costs in this Court.