Subhash Chander vs Shri Bodhraj and Another

Jaswant Singh, J.—This is an application to revise the order dated 31st December, 1966 of the Munsiff, Tammu, holding the application,

made before him u/s 151, CPC by Vinod Kumar Respondent No. 2 herein, for restoration of possession of the shop mentioned in the application

(on the ground that it was not the shop for which the decree for ejectment against Respondent No. 1 had been passed) to be maintainable.

The facts relevant for the purpose of this petition are:

On the 28th April, 1966, an ex parte decree for ejectment from a shop situate on B.C. Road, Jammu, was passed in favour of the Petitioner

against Bodh Raj respondent No. 1. On the execution of this decree being taken out, a warrant for evitotion of the judgment-debtor and delivery

to the decree-holder of the possession of the shop for which decree had been passed was issued and the Nazir of the Court was deputed by the

Munsiff to deliver possession of the said shop to the decree-holder. On the Nazir making a report that possession of the shop was duly delivered

on 2-8-1966, on the Nishandehi of Charanjit Lal, father of the Petitioner decree-holder, in execution application was consigned to records in full

satisfaction of the decree, the 27th September 1966, the Respondent No. 2 made an application before the Munsiff Tammu stating that he had

been wrongfully and fraudulently deprived in his absence of possession of the shop which had been got on rent from Rajinder Kumar and in which

he was carrying on the business of spare parts, that the shop of which possession had been taken away from him by the Nazir of the Court was not

the shop for which decree had been passed and praying that mistake be rectified and possession of the shop be restored to him,

The application was resisted by the Petitioner-decree-holder contending inter alia that the decree had been satisfied, that the Court had become

functus officio, that the application u/s 151, CPC was not maintainable and that a separate suit ought to have been brought by Respondent No. 2

for possession of the shop.

The learned Munsiff after considering the objections and hearing the submissions of the learned Counsel for the parties held that the application

was maintainable and if after summary inquiry it was found that possession of a shop other than the one for which decree had been passed had

been delivered action u/s 151, Code of Civil Procedure, could be made. With these findings, he called upon the Respondent No. 2 to lead

evidence in support of his application.

Bakshi Ishwar Singh, learned Counsel for the Petitioner, appearing in support of the revision application has contended that the Munsiff has

grossly erred and exceeded his jurisdiction in holding that the application u/s 151 Code of Civil Procedure, was maintainable.

Mr. V.S. Malhotra, learned Counsel for Respondent No. 2 has on the other hand, contended that Section 151, CPC covered the case and no

interference was called for with the order of the Munsiff Jammu.

After careful consideration of the matter and examination of the law bearing' on the matter, I am of opinion that Section 151, CPC which is

based on the principle Actus Curiae Neminem Gravabitan act of the Court shall prejudice no person, covers all such cases where the act of the

Court or any of its officers has resulted) in some injury to a party or where there has been an abuse of the process of the Court.

I am fortified in this view by a judgment of Privy Council in Rodger v. Comptoir D'Escompte De Paris (1870) 3 PC 465 : 7 Moo PC (NS) 314,

where it was held that it is the duty of the Court to take care that no act of the Court in the course of whole proceedings does an injury to the

suitors in the Court. Further support for this view is also available from another authority reported in AIR J 937 Mad 694, where it was held that

Section 151, CPC could be utilized where through a mistake or a material irregularity of the Court, the property has been sold such as when one

property has been attached and another has been sold. Again in Padmanabha Pillai Govinda Pillai Vs. Padmanabha Pillai Raman Pillai and

Another, , it was held that petition u/s 151, CPC is maintainable where the executing Court acts without jurisdiction and commits a mistake in

directing delivery of a specific plot of land contrary to the terms of the decree. Reference may also be made with advantage to S. Chokalingam

Asari Vs. N.S. Krishna Iyer and Others, , where it was held that Section 144, CPC was not exhaustive of the powers of the Court to order

restitution and in suitable and appropriate cases, where ends of justice require, restitution can be ordered under the Court's inherent jurisdiction u/s

151, Code of Civil Procedure.

Keeping in view the aforesaid authorities, I hold that the Court has inherent power to rectify its own mistake or mistakes 'of its officer and to

redress the wrong which may have resulted from an abuse of the process of the Court and to order restitution where the ends of justice may so

require. The learned Munsiff was, therefore, fright in holding that the application filed by Respondent No. 2 herein for restitution was maintainable.

For the foregoing reasons, I find no force in this revision which was dismissed with costs.