JAYARABAI Vs. BINDO GANESH

JUDGEMENT

(1.) THE appellate Court has reversed the decision of an executing Court and has held that a certain auction-purchaser is entitled to have a sale set aside under Order XXI, Rule 91, on the ground that the judgment-debtor had no saleable interest in the property. THE other side now comes to us in revision, and apart from the merits of the case the question for us to determine is whether this Court has jurisdiction to interfere, since a preliminary objection has been taken that it has no jurisdiction. On behalf of the petitioners reference was made to the decision of the Privy Council in Balkrishna Udayar v. Yasudeva Aiyar (1917) L. R. 44 I. A. 281 : s. c. 19 Bom. L. R. 715. THE case has been interpreted by the Patna High Court and by other High Courts, and the interpretation adopted has led to these High Courts holding that a Court of revision has power to interfere with a decision on a question which goes to the root of the jurisdiction of the Court. On the other hand, there are decisions not only of this Court but of other High Courts also which are to the effect that a decision will not be subject to the High Court's revision merely because it decides a question which involves jurisdiction. It will be subject to revision by the High Court only if it decides a question which itself is a direct question of jurisdiction.

(2.) THIS matter came before Mr. Justice Weston sitting alone; and though he had himself no doubts as to the powers of the High Court in a matter lite this, holding in effect that this Court had no power to interfere, he thought it better to refer the matter to a division bench. There can be no doubt that an erroneous decision upon a direct question of jurisdiction gives rise to an application in revision. If for example the Court of a First Class Subordinate Judge considers the question of its own jurisdiction in a particular matter according to the construction of a statute as compared with the jurisdiction of, say,, the District Court and wrongly comes to the conclusion that according to the true construction of the statute jurisdiction is with the one Court but not with the other and that decision is wrong and in the result it has wrongly exercised or not exercised jurisdiction, then its action is open to revision by the High Court; because it has decided what is a pure question of jurisdiction wrongly. Of that there can be no possible doubt, and no authority is needed for the proposition.

(3.) THE only decision of this High Court coining to our notice which seems to express views to the contrary is Nandlal v. Kisanlal (1928) 30 Bom. L. R. 1391, where Mr, Justice Patkar said-: "the question of law in this case involves, a question of jurisdiction and we have power to interfere under Section 115 of the Civil Procedure Code. " That suggests that in the opinion of the learned Judges this Court would have power to interfere merely because a question of jurisdiction was ultimately involved. But that dictum cannot be reconciled with such decisions as those to which I have referred and in particular with the decisions of this Court as to limitation and res judicata, and with respect it does not seem to us to be a correct decision. We are told that it receives support from a remark of the Privy Council in Balkrishna Udayar v. Vasudeva Aiyar, where at p. 267 their Lordships say: "the section [meaning Section 115] is not directed against conclusions of law or fact in which the question of jurisdiction is not involved. We are asked to read that sentence as if it were "the section is directed against conclusions of law or fact in which the question of jurisdiction is involved''; but for obvious reasons we are unable to do anything of the sort.