- (1.) The present revisional application under Art. 227 of the Constitution of India is directed against the order impugned dated 26-11-2001 passed by the Learned Civil Judge (Junior Division) First Court, Alipore in connection with title suit No. 206 of 1974. Mr. Soumen Sen appearing for the plaintiff/petitioner submits before me that the suit was decreed by the Learned Trial Judge thereafter it was slightly modified by the first appellate Court and in the second appeal the judgment of the Learned Trial Court was confirmed. Mr. Sen then argues that when the said decree for damages was put into execution it appeared that the amount of such damage came up to about Rs. 20 lacks for which the Learned Executing Court refused to pass any order for execution. In this connection Mr. Sen has referred to the Hon'ble Full Bench decision of the High Court at Calcutta in the case of Bidyadhar Bachar v. Manindra Nath Das, AIR 1925 Cal 1076, as appeared from the xerox copy of the judgment supplied to me. The head note of the said judgment reads as under : "Where a Judge has in the proper exercise of his jurisdiction passed a decree for possession and also a preliminary decree for mesne profit, he must be held to have jurisdiction to make a final decree in accordance with this decision. This jurisdiction is not limited, if as a result of the inquiry directed by him, mesne profits are found to exceed the amount of his pecuniary jurisdiction as regards the value of the suit. If a suit as rightly entertained as within the jurisdiction of the Judge and a decree passed, is power to grant the proper and adequate relief is not affected by any event which increases the value of the relief during the pendency of the suit. To hold that jurisdiction should depend on the amount for which the final decree should be passed would have this effect, that after the Judge passes a preliminary decree and it is found after accounts taken that the final decree must be for an amount exceeding the pecuniary limit of his jurisdiction, the entire proceedings before him, including the decree passed should be considered as being without jurisdiction. The forum of appeal is determined with reference to the value of the suit and not the amount decreed. The plaintiff is neither re- quired nor bound to state any amount in his application. The application is not a plaint, and the admission of both parties that the plaint should be returned for presentation to a Higher Court cannot be eccepted for the reason that a preliminary decree has already been passed, in the case by the Munsif on the Original Plaint and the only thing that remains to be done is to give effect to the preliminary decree by a final decree. There is no provision in the law for the return of a plaint after a preliminary decree has been passed."
(2.) The Learned Advocate for the O.P./ defendant submits on the other hand that the provisions of Art. 227 of the Constitution of India cannot be invoked in all circumstances and in this connection he has referred to the ratio decided in the case of Nibaran Chandra v. Mahendra Nath, AIR 1963 SC 1895. It was held in that case by the Hon'ble Apex Court that the jurisdiction conferred by Art. 227 was not by any means appellate in its nature for correcting errors in the decisions of subordinate Courts or Tribunals but was merely a power of superintendence to be used to keep them within the bounds of their authority. In setting up that ratio the Hon'ble Supreme Court in the said case also took the decision that the High Court was not justified in the course they took in interfering with the findings of the Revenue authorities. They were not sitting as Court of appeal and had merely to consider, firstly, whether the tribunals had outstepped the limits of their jurisdiction, or secondly, whether the finding recorded were based on no material, or were otherwise perverse.
(3.) After having considered the submissions made by the learned Advocates for the parties and the materials on record, I am inclined to apply the ratio decided in the case of Bidyadhar Bachar (AIR 1925 Cal 1076) (supra) as referred to by the learned counsel for the petitioner. The facts of that case squarely fit with the facts of the instant case before me. In the instant case also the decree was passed for damage and when the said decree was put into execution it appeared that the amount of such damage is much more than the pecuniary jurisdiction of the learned Munsif. But the quantum of the amount in execution is not the matter to be reckoned with for the purpose of execution of the decree, for, in the instant case the suit was for damage and thus having applied the ratio decided in the case of Bidyadhar Bachar (AIR 1925 Cal 1076) (supra) the order impugned passed by the learned executing Court appears to be not in conformity with the position of law thus it is candid that the learned executing Court in passing the order impugned had not exercised the jurisdiction vested upon it. And this has promoted me to distinguish the ratio decided in the case of Nibaran Chandra (AIR 1963 SC 1895) (supra) as referred to by the learned Advocate for the O.P /defendant. With this observation I am inclined to hold that the present revisional application under Art. 227 of the Constitution of India is liable to be allowed.;