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1953 DIGILAW 160 (MAD)

C. P. Vasantarajan v. Rani Parvathammani Garu

1953-04-15

RAMASWAMI GOUNDER

body1953
Judgment.-This is a Civil Revision Petition filed against the order made by the learned Subordinate Judge of Chittoor in E.A.No.143 of 1950 in E.P.No. 90 of 1949 in O.S.No.34 of 1931. The facts are.- The applicants in E.A.No.143 of 1950 are the decree-holders in O.S.No.63 of 1945 for a large amount of Rs.62,000 against the Zamindar of Punganoor. The judgment-debtor, the Zamindar of Punganoor, held a decree in his favour for costs in Privy Council Appeal No.46 of 1943 arising from O.S. No.34 of 1931 on the file of the Sub-Court, Chittoor, against one Raja Mahadeva Royal Varu. That decree was attached under Order 21, rule 53, Civil Procedure Code, in execution of the decree in O.S.No.63 of 1945 and the final order on that attachment petition is Exhibit A-1, dated 17th June, 1948. In pursuance of that attachment the petitioners executed the Privy Council decree in E.P.No.90 of 1949 and the legal representatives of the judgment-debtor deposited the decree amount of Rs.14,389-14-0 on 11th April, 1950, into Court. One Rani Parvathamma holds a decree in O.S.No.60 of 1948 for a sum of nearly a lakh of rupees, against the Zamindar of Punganoor and she attached the Privy Council decree and the attachment was made absolute on 27th June, 1949 and she has also taken out execution in other ways against the Zamindar of Punganoor. There are other money decrees against this Zamindar of Punganoor in O.S.No.136 of 1946 and O.S.No.34 of 1930 and the decree-holders therein claimed rateable distribution. The decree-holders in O.S.No.63 of 1945 claimed the entire amount on three ground (a) that it was specifically earmarked for payment towards satisfaction of their decree; (b) that they in terms of their decree hold a charge on the said amount on the foot that the words “a charge on the Punganoor Estate” in their decree mean movable and immovable properties of the Zamindar of Punganoor, and (c) that they are transferees by equitable assignment of the Privy Council decree on the foot of a letter which is said to have been passed by the Zamindar or Punganoor, The learned Subordinate Judge has exhaustively examined these three grounds and come to the conclusion that the decree-holders in O.S.No.34 of 1931 did not make out either singly or cumulatively these grounds for claiming the entire amount. Therefore he ordered rateable distribution and hence this Civil Revision Petition. Therefore he ordered rateable distribution and hence this Civil Revision Petition. A preliminary objection is taken by the learned Advocate for the respondents that a wrong order of distribution can be contested in a suit under clause (2) of section 73, Civil Procedure Code, and that this other remedy being open, the High Court should not interfere in revision in such a case. In regard to this contention two propositions are deducible from the line of decisions on this subject. The first proposition is that as a remedy by way of a suit is open to the aggrieved party the High Court will not as a general rule interfere in revision in cases arising under section 73, Civil Procedure Code: Venkataraman v. Mahalingayyan1, Mammad v. Ramachund2; Murugappa Chettiar v. Narayanaswami Pillai3; Somasundaram Chetty v. Tirunarayana Pillai4; Subramaniam Chetty v. Ramaswami Chetty5; Subramaniam Chetty v. Swaswamy Chetty6. Chockalingam v. Muthuswami7; Seetharamayya v. Rathamma8; Seetharamayya v. Gurunathan9 ; Alagannan Chettiar v. Ramanatham Chettiar10; Ram Sarandas v. Amarnath11; Daulat Singh v. Rup Narain12; Mam Chand v. Roshan Lall3 and Bulakhidas v. Murlidhar14. This, however, does not mean that the High Courts cannot interfere in revision at all because where the lower Court acts without jurisdiction or declines to exercise jurisdiction or the remedy by suit is so inconvenient as to practically amount to no remedy or is manifestly wrong or the result of the suit if brought would be a definite success, a revision has been held to lie; Sankaranarayana Ayyar Firm v. Yeguh Lakshmi Ammal15; Viraraghava v. Parasuramanl6, Sri Krishna Dass v. Chandook Chand17; Sundaram v. Mamsa Mavuthar18. But in regard to this second line of decisions we have to bear in mind that their Lordships of the Supreme Court have recently examined the scope of the revisional jurisdiction of the High Courts under section 115, Civil Procedure Code, in Keshardeo Chamna v. Radha Kisson Chamria19 and have cited and approved the observations of the Privy Council in Amir Hassan Khan v. Sheo Baksh Singh20; Balakrishna Udayar v. Vasudeva Ayyar21; Venkatagiri Ayyangar v. Hindu Religious Endowments Board22, and Joy Chand Lal Babu v. Kamalaksha Chaudhury23, and the observations of Bose, J., in Narayan Sonaji v. Sheshrao Vithoba24 and laid down that the words “illegally” and “material irregularity” do not cover either errors of fact or law and that they do not refer to the decision arrived at but to the manner in which it is reached and that the errors contemplated relate to material defects of procedure and not to errors of either law or fact after the formalities which the law prescribes have been complied with. This decision serves to show to the High Courts the limits of the jurisdiction conferred by section 115, Civil Procedure Code. The facts of the instant case show that what the petitioners are seeking is to entertain an appeal in the guise of a revision. Therefore on the preliminary point, I hold that a revision of the order under section 73, Civil Procedure Code in the circumstances of this case does not lie. This petition is therefore dismissed with costs of Rs.4 leaving it open to the petitioners to file a regular suit if so advised. V.P.S. ----- Petition dismissed.