KANAI LAL GHOSE Vs. JATINDRA NATH CHANDRA

JUDGEMENT

(1.) We are invited in this Rule to set aside an order made in execution of a decree for costs in a suit under Section 9 of the Specific Relief Act. The petitioner instituted this possessory suit against five defendants, one of whom contested the claim and appeared at the trial. The suit was ultimately decreed in favour of the plaintiff with costs and interest. The concluding portion of the judgment ran as if the suit was decreed against all the defendants. The decree, however, was framed as a decree against one defendant only, namely, the fifth defendant who had resisted the claim. The plaintiff decree-holder applied for execution and for recovery of the costs from all the defendants. The Court held that the decree was in essence against the fifth defendant alone and so dismissed the application for execution against the other defendants. The decree-holder thereupon appealed to the District Judge. He held that the decree, interpreted by the judgment must be deemed a decree against all the defendants and accordingly directed execution to proceed against all of them. Subsequently, some of the defendants other than the fifth defendant applied to the District Judge to review his judgment on the ground that he had no jurisdiction to entertain the appeal. The District Judge accepted this contention as well founded and thus, discharged his original order. The result was that the order of the Trial Court stood restored. The plaintiff then obtained the present Rule; which calls upon the defendants to show cause why the orders made by the Courts below should not be set aside and why such other order should not be passed as to this Court might seem fit and proper. Consequently all the orders made by the Courts below are before us for consideration.

(2.) Section 9 of the Specific Relief Act provides as follows "No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed." The first question for determination is, whether the term suit includes an execution proceeding on the basis of the decree in the suit. In our opinion, the question must be answered in the affirmative. This view was taken in the case of Thomas Soma v. Gulam Moideen Beari 26 M. 438: 13 M. L. J. 214. and was subsequently adopted by the Punjab Chief Court in the case of Mohfuz Ali v. Birji Nand Kerat 28 Ind. Cas. 282: 45 P. L. R. 1915. Though we have not been able to trace any reported decision on the point in this Court, it is plain that the view taken by the Madras High Court is in conformity with a principle which has been repeatedly recognised and applied here. Section 102 of the Code of Civil Procedure provides that no second appeal shall lie "in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed five hundred rupees." This provision is a reproduction of Section 585 of the Code of 1882, which replaced Section 27 of Act XXIII of 1861. It was ruled by this Court in the case of Anund Chunder Roy v. Sidhy Gopal Misser 8 W. R. 112. that the expression suit in Section 27 of Act XXIII of 1861 included execution proceedings, and this view was subsequently affirmed by a Pull Bench in the case of Gora Chand Misser v. Raja Baykante Narain Singh 12 B. L. R. 261: 20 W. R. 421 (F. B.). A similar view has been adopted in all the other High Courts [Din Dayal v. Patra Khan 18 A. 481: A. W. N. 1806, 160 (F. B.), Narayan Parmanand v. Nagindas Bhaidas 30 B. 113: 7 Bom. L. R. 641. and Mavula Ammal v. Mavula Maracoir 30 M. 212: 17 M. L. J. 376.]. When a similar question arose before this Court in connection with Section 153 of the Bengal Tenancy Act, it was ruled in the case of Shyama Charan Mitter v. Debendra Nath Mukerji 27 C. 434: 4 C. W. N. 269: 14 Ind. Dec. (N. S.) 18. that the bar provided in that section was applicable not merely to the decree made in the suit but extended to orders made in execution of such decree. This position was recently approved by a Special Bench of seven Judges in Prafulla Krishna Deb v. Nosibannessa Bibi 37 Ind. Cas. 425: 24 C. L. J. 331. We are consequently of opinion that the appeal to the District Judge was incompetent. The fact that no objection was taken to his jurisdiction when the appeal was heard, did not invest him with authority to entertain the appeal; for, as ruled by the Judicial Committee in Meenakshi Naidu v. Subramania Sastri 14 I. A. 169: 11 M. 26: 5 Sar. P. C. J. 54: 111 Ind. Jur. 393: 4 Ind. Dec. (N. S.) 18 (P. C.). where there is an inherent incompetency in a Court, no consent can confer upon the Court that jurisdiction which it does not possess. It is equally clear that the District Judge was not competent to entertain the application for review, because the order he had initially made was an order of the description mentioned in the concluding paragraph of Section 9; so that if the appeal to him was incompetent as we hold it was, the application for review was equally incompetent. It cannot further be maintained that as the District Judge had exercised a jurisdiction which was not vested in him by law, he had inherent power to-set matters right by way of review; for, as was explained in Sasi Bhushan Mookerjee v. Radha Nath Bose 25 Ind. Cas. 267: 20 C. L. J. 433 at p. 439: 19 C. W. N. 835. it would be a patent misapplication by a Court of Section 151 of the Code of Civil Procedure, it it were, in the exercise of its inherent power to assume jurisdiction by way of review where it was expressly forbidden by the Legislature to entertain such an application. The position thus is that the appeal was heard by the District Judge without jurisdiction and the review was granted to him equally without jurisdiction, and both these orders must consequently be discharged. This leaves us with the order of the Court of First Instance, and the only question for consideration is, whether that order is of such a character as to justify an interference by this Court. We are not satisfied that the order was erroneous on the merits. We have examined the decree as also the judgment and our inclination is to hold that the view taken by the Munsif was correct on the merits. But even if it were regarded as erroneous, the error which the Munsif committed would be nothing more than an error of law, due to a misconstruction of the decree such an error does not constitute a sufficient ground for our interference in the exercise of our revisional jurisdiction.

(3.) The result is that this Rule is discharged, but each party will pay his own costs.