Pranjivandas Lakhmidas vs Bhavanishankar Ramshankar

Chandavarkar, J.—I think in this case a rule must issue. The Subordinate Judge has gone beyond the condition prescribed in Sections 278 and 280 of the Civil Procedure Code. It is found that the possession is with the claimant, and the judgment-debtor is not in possession, physical or constructive. But the Subordinate Judge has decided against the claimant upon the ground that the sale-deed on which he relies is invalid. I will not, however, pursue this matter further, because I understand my learned colleague to agree with me so far. But he thinks that under the extraordinary jurisdiction we are not bound to interfere even where there is an error as to jurisdiction, as the defeated party has a remedy by suit.

It is true that our power under the extraordinary jurisdiction is discretionary. But it is a well-known rule of law that all judicial discretion must be exercised not arbitrarily but according to sound judicial principle. The decision in Dayaram Jagjivan v. Govardhandas Dayaram 28 B. 458 proceeds upon this ground as I understand it. There the Court declined to interfere because there were some equitable considerations. My opinion is that when we decline to interfere u/s 622, some reasonable ground must be assigned or else it will be an arbitrary exercise of the discretion. And this I have known to be the practice of this Court. Further the Full Bench decision of this Court in Shiva Nathaji v. Joma Kashinath 7 B. 341 settled the point finally in 1853 and binds us. And the sixth principle laid down in it supports my view.

Where the Legislature provides a summary remedy and where the Legislature entitles a party to resort to it, it is not a judicial exercise of our discretion to hold that we should refuse to interfere because he has remedy by suit, though the Court below has either assumed jurisdiction which does not exist or declined to exercise jurisdiction which the law has given. If it were so, Section 622 would be rendered practically nugatory.

Heaton, J.

There is a" difference of opinion here. My view is that the power which the Court has u/s 622 of the CPC is entirely a discretionary power. And taking the Code as a whole I read the section as intended in a large measure to prevent a miscarriage of justice which otherwise is irremediable. But in a case of this kind, of an order u/s 280, what seems to me to be the obvious remedy and that intended and clearly indicated by the Code (see Section 283) is a remedy by suit and not a remedy by application to this Court to exercise its power u/s 622. For this reason I should decline to allow a rule to be granted.

The application was finally disposed of by a bench composed of Batchelor and Beaman, JJ. Before that date, the petitioner had filed a regular suit for removing the attachment.

JUDGMENT

Batchelor, J.

In view of the diversity of judicial opinion which appears to exist as to the meaning and scope of Section 622 of the old Civil Procedure Code, with which Section 115 of the present Code corresponds, I should be reluctant to hazard any expression of my own opinion without an exhaustive study of the various authorities bearing upon the point. That study it is not necessary for the present purpose to enter upon. It will, therefore, be enough for me to say that my impression always has been that as a general working rule of practice, this Court does not interfere u/s 622 (115 of the new Code), where an applicant has by suit or otherwise another remedy open to him. Whatever may be the true view upon this subject, I am clear that in this particular case we ought not to interfere and that, of course, is the only point which actually falls to be decided. In the special circumstances which were revealed to the Court below when it opened its investigation, that Court was, in my opinion, perfectly right in declining to remove the order of attachment and in referring the applicant to a civil suit to establish such rights as he claimed to possess. That is all that it is necessary for me to say on this application, and I must not be understood to express any opinion on the substantive merits of the applicant''s case. Moreover, it appears that the applicant has now actually filed a suit and has obtained a stay order pending its decision. That circumstance appears to me to furnish yet another reason why We should not interfere now. I would, therefore, dismiss this application with costs.

Beaman, J.

Having regard to the conflict to which my learned brother has alluded, I think it right to express my own opinion. I am, perhaps, in a better position than my learned brother to do so confidently. For this is no new question to me.

I had to deal with it practically, as far back as 1884; and for many subsequent, years, sitting alone, to exercise all the revisional and superintending powers of a High Court over large provinces. I had to give the most anxious consideration to the true principles of Section 622, Civil Procedure Code, and the proper limits of its designed scope and operation. The point which has arisen in this case frequently came before me for decision: I had to keep a watchful eye on the accumulating case law, and critically analyze for myself every reasoned judgment either for or against the view I adopted. The leading cases in all the High Courts were familiar to me. And while there may be found numerous exceptions in practice, to which, it is impossible. when concerned with the theoretical aspect of the question, to pay much attention, I believe that I have considered with proper respect, most if not all the reasoning of many eminent judges, in the High Courts of India, who have inclined to the opposite view. My own opinion has always been that where there is a remedy by suit, and secondarily by appeal from the decision in such suit, it was not the intention of the legislature that High Courts should interfere u/s 622. The prolonged study I have made of all the authorities has yielded no sufficient reason, in my judgment, for doubting the correctness of that opinion. I have held it consistently for twenty-five years; I have never deviated from it, and I think it unlikely, after this lapse of time, that any new reasons will be found, cogent enough to convince me, that any deviation is necessary.

Briefly my view is, and always has been, that whatever may be the precise extent of the powers conferred upon this Court, by the designedly vague and comprehensive language of Section 622, it was not the policy of the legislature, when framing that section nor has this Court readily or usually accepted as the policy of the legislature, expressed in that section, that it should exercise these large powers except in cases where there is no other remedy. A critical analysis of all that underlies the conflicting decisions makes it, I think, clear that the basic principle of administerings Section 622 invariably resolves itself into this, that a High Court, as the final Court of Revision and guardian of justice, will ordinarily only interfere where it considers, that if it does not, otherwise irreparable injustice will be done. It is equally clear that there is no risk of otherwise irreparable injustice being done in cases where though there is no direct appeal, there is an indirect appeal by way of a regular suit, against the order complained of. Not only is this construction of the section accordant with its fundamental principle but also I think with a reasonable interpretation of its actual language. The section confers power on the High Court in cases where no appeal lies. True, in the present case, there is no direct appeal from the order; but that it is because the legislature has provided a better way. The party aggrieved by the order has his remedy. by civil suit, and if that fails him he has a right of appeal to this Court in, which precisely those points, which we are now asked to deal with as grounds of revision, "would be brought before us regularly and in proper form, by way of appeal. Looking again to the practical result: Suppose we do interfere as a Court of Revision, and reverse the order; then the other party will'' have to file a suit, and sooner or later both will be obliged to have recourse to their remedy by regular appeal.

I may add that in spite of sporadic cases, in which I do not find this principle much considered, possibly in which it was not brought prominently to the notice of the learned Judges concerned, and so was neglected, or perhaps disapproved, the weight of authority in our High Court is preponderantly in favour of the view I have taken. And the practice also has, I think, on the whole been in the same direction. On this ground alone I would decline to interfere; but even were I wrong, I should entirely concur with what has fallen from my learned brother, in respect to the particular case, as good enough reason for refusing to exercise our revisional power, in favour of the applicant.