MOHD. YUNUS versus MOHD. MUSTAQIM & ORS .

SEN, J : This special leave petition directed against the judgment and order of the Delhi High Court dated September 3, 1980 must fail as the decision of the High Court on merits ·is unassailable. But in view of the growing tendency of litigants of by-passing the normal remedy of an appeal or revision by moving the High Court with petitions under Art. 227 of the Constitution, we deem it necessary to give the reasons therefor.

p. 212, margin F

It appear' that the . property belonging to the surety Mohd. Salam comprised of a house situate at Katra Sheikh Chand, Lal Kuan, Delhi was sold by the Subrodinate Judge, Delhi in execution of an ex parte decree in favour of Mohd.' Mustaqim due •to the failure of the judgment-debtor Hakim Mazhar-ud-Din to satisfy the decree on May 24, 1972, .On June 9, 1972 the surety- made an

p. 212, margin G

\idNt.is v. (Sen, J.) · appiication under ~· 151 of the Code of Civil Procedure, 1908 without specifying whether it was under 0. XXI, r. 89 or r. 90. The learned Subordinate Judge by his order dated June 10, 1972 treated the al?\'lication to be under O. XXI, r. 89 and the surety opted to elect it as such and prayed for time to deposit the solatium equal to 5% of the purchase money for payment to the auction-purchaser Chuni Lal, but failed to make such deposit till. his death on July 22, · J972. · At no stage of the proceedings did the surety assert that the decree had been satisfied out of Court, nor did he make an ·application under 0. X~I, r. 2 for certification of adjustment. He died leaving behind him a son named Mohd. Karim·and a daughter named Mst.Rabia Khatoon, both of whom were apparently settled in Pakistan, . After his death, on August 11, 1972, the petitioner who is a total stranger to the estate of the deceased-surety, made an application stating that his name be substituted as he was the grandnephew •of the surety and also his heir and successor-in-interest under an alleged will executed by the surety on July 20, 1972 i.e. two days before his death. On the same day, there was an application moved by the decree-holder stating that the surety had already made payment of the decrea) amount and costs to him before the sale was held on May.24, 1972 and that fu.ll satisfaction of the decree may be recorded. The respondent, who is the. auction-purchaser, contested the claim of the petitioner and pleaded inter a/ia that tj:ie genuine· ness of the alleged will is open to question apart from its validity as 'it was affected by the doctrine of marz-u/ maul and that, in any event, the alleged adjustment could not affect his right or title to the property in dispute as an auction-purchaser.

p. 213

The learned Subordinate Judge by his order dated November 23, 1972 held that there was no question of allowing the substitu· tion of th~ nai'ne of the petitioner by the Court under its inherent powers. Od December 15\ 1972 the petitioner moved another appli· cation under s.151 of the Code for setting aside the sale on the ground that there was material irregularity in publishing and conducting the same and also to re.cord satisfaction of the decree and set aside the sale. That application of_ bis was disallowed by the learned Subordinate Judge by his order dated November 9, 1973 on .the ground that his earlier order dated November 23, 1972 holding that the application made by the surety purporting to be under O.XXI, r.89 stood disposed of as he did not comply with the requi· rements of r,89, operated as res judicata, and no questton of invoca- ~ion of the inherent powers of the Court arose and further that thv application made by the petitioner treated as an application under O.XXI, r.89 was barred by limitation as it was filed beyond the period of 30 days prescribed by Art.127 of the First Schedule to the Limitation Act, 1963.

pp. 213–214, margin F

Di~satisfied with· the impugned orders passed by the !carried Subordinate Judge, the petitioner moved the High Court under Art.' 227 of the Constitution. The contenlion before the High Court was that there was fraud perpetrated by the decree-holder in bringing the property in dispute io sale although there was full satisfaction of the. decree by 'the surety before his death. The High Court instead of dismissing in /imine the petition u)lder Art.227 of the Constitu• tion as not maintainable, declined to interfere with the impugned orders of the foamed Subordinate Judge because it was satisfied that the application made by the petitioner construed as an application made under .O.XXI, r.89 to set aside the sale was barred both by

p. 214, margin A

the principle, of constructive res judicata and' also by limitation inas- • much as it was governed by Art.127 of the First Schedule to the Limitation Act, 1963,

p. 214, margin B

We fail to see the propriety of the petition moved by the petitioner in the High Court under Art;227 of the Constitution. The fule is well-established that 'there can be no certification of an adjustment between the dearee-holder and the judgment-debtor under O.XXI, r.2 11fter an auction-sale is held in a case where a third

p. 214, margin D

pa_rty's .intere~t intervenes. In such a case. the Court has , no alter- , native but to confirm the sale under O.XXI, r.92 of the Code. In Nanhelal & Anr. v. Umrao Singh,( the Judicial Committee Of the Privy Council in dealing with O.XXI, r.2 of the Code. held that an adjustment between the decree-holder and the judgment-debtor come to at i.my time before the confirmation of an execution sale cannot nullify the docree by taking away the very foundation of the Court's power to execute the decree viz. the existence of a decree capable of execution. In dealing with' the question, the Privy Council observed : ' . _· ~

p. 214, margin E

"In the first place, 0.21, R.2, which provides for certification of an adjustment come to out of Court, clearly contemplates a stage in the. execution proceedings

p. 214, margin G

when the matter lies only between the judgment·d.ebtor '--~~~~~~~- I . [I) 58 lA and the decree-holder, ;ind when no other interests have come into being. . When once a sale has been effected, a third party's interest intervenes, and there is nothing in this rule to suggest that it is to be disregarded. The only means by which the judgment-debtor can get rid of a sale, which has been duly tarried out, are these embodied in . . R.89, viz, by depositing in Court the amount for the recovery of which the property was sold, ~ogether wiih 5 per cent On the purchase money which goes t\) the purchaser as statutory compensation, and this remedy can only be ·pursued within 30 days of the sale : see

pp. 214–215, margin H

Art. 166, Sch.I, Lim. Act, 190.8." The Privy Council further observed :

p. 215, margin B

..

p. 215, margin C

"That this is so is clear from tho wording of R.92, which provides that in sm;h a case (i.e. where the sale has been duly carried out). if no application is made under R.89, the Col)rt shall make an order confirming the sale and thereupon the sale shall become absolute."

p. 215, margin C

The petition under Art. 227 of the Constitution was wholly misconceived. An ~ppeal lay from an order under O.XXI, r. 92 setting aside or refllsfog to set aside a . sale, under ·o XLIII, r. 1 (j) to the District Judge. That apart, the application made by the petitioner claiming to be the legal representative , of the surety, the judgment-debtor's representative, on the one hand and the auction-purchaser, the decree-holder's representative, on the other alleging that there had. been a. fraud perpetrated by the decree-holder in causing tbe sale to be . held, with a prayer for recording satisfaction ·of the decree under O,XXl,r.2, raised a question relating to the execution, discharge or satisfaction of the decree and therefore fell \Vithin the purview of s. 47 which prior to February I, 1977 was appealable because then a decision under s. 47 was ' deemed to be a decree undet s. 2(2) of the Code, and therefore the . petitioner had the remedy of an appeal to the District Judge. Even if no appeal lay against the impugned orders of the learned su!:>ordinate Judge, the petitioner had the· remedy of filing a revision before the High Court under s.115 of the Code. · Upon any view of the matter, the High Court bad no juri~diction to interfere with the imp· .ugned orders passed by the learned Subordinate Judge, under-Art. 'l,27 of the Constitution. A mere wrong .decision without anything

p. 215, margin D

SiJPRiiME CoiJR T REPORTS [1984} l s.c,tl. more is not enough to attract the jurisdiction. of the High Court under Art. 227.

p. 216

The supervisory jurisdiction conferred on the l:ligh Courts udder. Art. 227 of the Constitution is limited "to· seeing that an inferior Court or Tribunal functions within the limits of its autho· rity", and not to correct an error apparent on the face of the record, ·much less an error of lew. In this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There. was no failure on the part of the learned Subordinate Judge to exercise jurisdiction, nor· did he act in disregard of principles of 'natural justice. Nor was the pro'cedure adopted him not in con· sonance with the procedure established by faw. In exercising the supervisory power under Art.227, the High Court does not act as an Appellate Court or Tribunal. It will not review or re-weigh the evidence upon . which t)le determination. of the inferior court or tribunal purports to be based or to correct errrors of lew in the decision.

p. 216

The special leave petition is accordingly dismissed .. P.B.R. Petition dismissed.

p. 216, margin D