Patna High Court
Syed Salahuddin Ahmad vs Janki Mahton And Ors. on 17 December, 1952
Equivalent citations: AIR1953PAT171, 1953(1)BLJR79, AIR 1953 PATNA 171
ORDER Sinha, J.
1. The decree-holder has filed this application against an order of Mr. Ramratan Singh, Subordinate Judge, 2nd Court, Patna, dated 26-4-1952, directing that a fresh writ of delivery of possession should be issued on the decree-holder's filing necessary requisites. The learned Subordinate Judge has purported to act under Section 151, Civil P. C., which preserves the inherent rights of the Court. The facts shortly stated, are that in execution of a decree for recovery of possession of certain plots of land a writ of delivery of possession was issued. This was followed by an application by the opposite party who claimed to be in possession of the lands in question, and who objected to the possession being given to the decree-holder. The opposite party, it must be stated at the outset, were no parties to the decree. This objection was rightly rejected. The writ of delivery of possession was returned unexecuted for the second time, and on this occasion also the opposite party filed an objection asking the Court to direct the decree-holder to make an application under Order 21, Rule 97, of the Code of Civil Procedure. The Court directed to get the writ of delivery of possession served by the 5-11-1951. The writ was made over to one Kesho Lal, a process-server, on 28-9-1951, and Kesho Lal made a report to the effect that he had delivered possession on the 30-9-1951, over an area measuring 39.12 acres.
It appears that on account of the Puja holidays intervening, the matter was placed before the Court on 6-11-1951, on which date the order records as follows:
"5th being holiday case taken up today. Possession delivered. No objection raised."
On that very day, the opposite party filed another application stating that the peon had submitted a false report, and that in fact possession had not been delivered, and a prayer was made that the matter be enquired into. There was another prayer to the effect that if on enquiry it was found that the peon had actually delivered possession, then this application of the opposite party should be treated as an application under Order 21, Rule 100, Civil P. C. The Court observed that this petition did not amount to an application under Order 21, Rule 100, Civil P. C., and that if the opposite party so liked, they should file another application making out a case under Order 21, Rule 100. The prayer for enquiry as to whether the writ of delivery of possession had in fact been served or not was allowed, and the relevant papers were directed to be sent to the Inspector of Process-Servers for enquiry and report.
It is to be noted in this connection that the judgment-debtor did not object to the delivery of possession. The Court, after perusing the report of the Inspector of Process-servers and after hearing the decree-holder and the opposite party, held that the report of Kesho Lal was false and that he did not deliver possession of the plots on the spot because, in the opinion of the Court and the Inspector of Process-servers, it was not possible for Kesho Lal to have delivered possession over a number of plots measuring 39.12 acres and spread over three miles in area in such a short time as was alleged by the peon; and after having so held, the learned Subordinate Judge directed a fresh delivery of possession to be given.
2. In my judgment, the learned Subordinate Judge has acted absolutely without jurisdiction. Section 151, Civil P. C., runs as follows:
"Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."
This section gives ample power to the Court in its inherent jurisdiction to make such orders as the Court thinks necessary to meet the ends of justice or to prevent abuse of the process of the Court, but it must be borne in mind that the expression "ends of justice" or "abuse of the process of the court" should not be understood in the abstract sense. These expressions must have reference to the parties aggrieved, that is to say, if some act has been done by the Court, the Court should, at the instance of the party injured and for his benefit, make any orders which it considers just and proper provided the party injured has no other remedy to set right that wrong. In this case, the judgment-debtors never made a grievance that the possession had not been delivered. The opposite party also has suffered no injury because according to them they were never dispossessed. Therefore, no party to the suit or even a third party, as the opposite party in this case, has been adversely affected by the report of the peon to the effect that he had delivered possession. Mr. Baldeva Sahay has submitted that once the Court comes to the conclusion that its process-server has made a false report, the Court must take suitable action.
In my opinion, if the act of an officer of the Court does not injuriously affect the party to the action, and no party makes any grievance with respect to the S')id act of the officer of the Court, it is none of the business of the Court to recall an order already passed, or to pass a fresh order. Mr. Baldeva Sahay has not placed before me a single case in which the Court, acting under Section 151, Civil P. C., has recalled any order already passed or made new order without any party to the action having drawn the attention of the Court that that party has been wronged as a result of the action of the Court or its officer. In -- 'Bhikhan Gir v. Jalpadat Jha', AIR 1921 Pat 293 (2) (A) Javala Prasad, J. held that the only justification for the exercise of the inherent powers under Section 153, Civil P. C., would be the fact that the wrong was caused by an error or mistake of the Court itself. This case was followed by another Judge of this Court in -- 'Moharmani Kuer v. Bhankumar Chand', AIR 19.36 Pat 176 (B), who also relied upon the case of -- 'Ajant Singh v. Sundar Mal, 16 Ind Cas 567 (C). In these cases no doubt the facts were different, but they all held that if some order had been passed by the Court without notice to that party, that order could be revoked at the instance of any party prejudiced thereby.
In -- 'Alagasundaram Pillai v. Pichuvier', AIR 1929 Mad 757 (D) the Full Bench decided that an ordinary Civil Court has no inherent power to set aside its own order and to interfere in any case in which it thinks a failure of justice has occurred when the aggrieved party has another remedy by which it can be set aside. This case in hand is a case in which no party is aggrieved, and, therefore, the report of the peon though held to be false, did not call for the exercise of the inherent power of the Court. A case though not on all fours with the present one is the case of -- 'Amar Singh v. Buta Shah', AIR 1927 Lah 372 (E). An ex parte decree had been passed in that case against the defendant, but it was subsequently found that the summons in that case had not been served upon the defendant, and acting under Section 151, Civil P. C., the Court cancelled the decree and ordered for fresh summons to issue to the defendant. His Lordship made the following observation:
"Section 151 (Code of Civil Procedure), however, cannot be used for this purpose. The Code provides a means by which the judgment-debtor could have moved the Court, when he became aware of the decree, to set aside the decree ex parte and this can now be done by the judgment-debtor if he wishes to have the decree set aside, since he is represented before me and now has knowledge of decree."
This case was much stronger than the present one. There some party was aggrieved as the order of the Court had adversely affected that party, but as the party aggrieved did not choose to move the Court, it was held that the Court should not have exercised its inherent powers under Section 151, Civil P. C.
3. In the circumstances mentioned above, in my judgment, the order complained against is without jurisdiction and must be set aside. The application is accordingly allowed with costs and the order of the learned Subordinate Judge dated 26-4-1952 is set aside. Hearing fee two gold mohurs.