Holding

A petition under Article 227 is wholly misconceived where an appeal or revision under the Code of Civil Procedure is available, and the High Court lacks jurisdiction to interfere.

Summary

The Supreme Court examined a petition filed under Article 227 of the Constitution challenging the sale of a property executed against a judgment-debtor. The sale was ordered by a Subordinate Judge after the surety of the judgment-debtor failed to deposit the required amount and subsequently died. The surety's alleged heir sought substitution and claimed that the decree had been satisfied before the sale, while the auction-purchaser contested the claim. The Subordinate Judge rejected both the substitution and a later application to set aside the sale, citing res judicata and limitation. The petitioner then approached the High Court under Article 227 alleging fraud, but the Court held it had no jurisdiction and that the proper remedy was an appeal to the District Judge or a revision under the CPC. The Supreme Court dismissed the Special Leave Petition, confirming that Article 227 cannot be used to correct such errors.

Issues considered

Whether a petition under Article 227 of the Constitution is maintainable to challenge an order passed under Order XXI, Rule 92 of the CPC.
Whether the High Court has jurisdiction to entertain a petition alleging fraud in an execution sale when an appeal or revision remedy exists under the CPC.
Whether the petitioner was required to file an appeal to the District Judge or a revision under Section 115 of the CPC.

Legislation cited

Code of Civil Procedure, 1908s. Order XLIII, Rule 1(j), s. Order XXI, Rule 2, s. Order XXI, Rule 89, s. Order XXI, Rule 92, s. s.115, s. s.151, s. s.47
Constitution of Indias. Art. 227
Limitation Act, 1963s. Art. 127

Subjects

supervisory jurisdictionArticle 227CPC Order XXIexecution saleappealrevisionres judicatalimitationsuretydecree satisfaction

Judgment

211

MOHD. YUNUS
A
v.
MOHD. MUSTAQIM & ORS.
. '
October 4, .1983 B
[A. P. SEN AND E. S. VENKATARAMIAH, JJ.J

Constitution of India 1950 : Petition under O.XXl r.92 dismissed-Ptti•
tiontr, if could file a petition under Art. 227 of the Con~titution.

'-;'
Code of Civil Procedure: Petition under O.XXI, r.92 dismissed-Appeal
not preferred-If could move High Court under Article 227.

On the failure of the judgment-debtor to satisfy the decree passed against
him the property in dispute was sold in execution of the decree. The surety
made an application' under Section 151 Code. of Civil Procedure, without D
mentioning. the order under which the application was mad-e. The Subordinate
Judge treated the application as one under order XXI, r.89. The surety in that
application prayed for t·ime to deposit the amount but failed to make the
deposit. J.n the meantime, he died. A total strapger to his estate purporting
- ).
/
to be his grand-nephew made an application for substitution claiming that he
was the surety•s successor-in-interest and that before his, death _the 'surety had
executed a will in his favour. On the same day the decree-holder made an
- application stating·that the surety had made payment 6f the decretal amount
before the sale was held and prayed that full satisfaction of the decree be
recorded. The respondent who was the auction-purcha'ser, contested, the
. genuineness of the will and stated that the alleg~d adjustment could not in any
event affect his right or title to the property in dispute as auction-purchaser.
The-subordinate Judge refused substitution of the petitioner. Some time later.
the petitioner moved another application under se~tion 151 of the Code of.
Civil Procedure, for setting aside the sale on the ground of material irregularity
in conducting the sale but that application was rejecte~ by the Subordinate
Judge.

The petitioner thereupon 'moved· the High Court_ under Art. 227 of the G
Constitution contending that fraud was perpetrated ·by the decree-holder in
bringing the property hi dispute to sale although' there was fun satisfaction of
· the decree by the surety before his death. The High Court declined to interfere
with the impugned orders of the Subordin_ate Judge on various grounds.

On the question whether it was proper fo.r the petitiQ\ler tQ h~ve ~ove4
'petition under Art. 227 of the C:onstit~~~C?l:l:~ ·

Dismissing the ~C?ti~~?~~
212 SUPREME COURT REPORTS i1984j 1 s.C.R.
HELD : The petition under Art. 227 was wholly misconceived. The
A. supervisory jurisdiction conferred on the High Courts under Art. 227 of the
Constitution is 1imited "to seeing thiii an inferior· Court or Tribunal functions
within the limits of its authority", and not to correct an arror apparent oD the
face of the record, much less an error of laW. In the instant case, there was no
error of t8.w. or error apparent on the face of record. From an ·order under
-0.XXI, r.92. an appeal lay to the District Judge. That apart the petitioner's
application iaised a question re_lating_ to execution which fell within the purview
B of section 47 Code of Civil Procedure which prior to February 1, 1977 was
appealable because then a decision under section 47 was deemed to be a decree
under section 2(2) of the Code. There'fore, the Petitioner had the remedy of
appeal to the District Judge: Even if no ·appeal lay against the impugned
orders of the Subordinate Judge, the petitioner had the remedy of filini;t a
revision bc_fore the High Court under section 115 of -the Code. Upon any view
c of the matter the High Court under Art. 227 of the Constitution had no juris-
. diction to interfere with the impugned orders passed by the Subordinate Judge.
A mere wrong decision Without anything more JS ·not ehough to atitact the
jurisdiction of the High Collrt under Articte· 227. .:.

. . [215 E; 216 B-C; 215 F-H; 216 A]

C1v,(L APPELLATE JURISDICTION: Special Leave Petition No. 9148
D of 1980. ·

From the Judgment and Order dated the -3rd September, . 1980
of the High Court of Delhi in C,M. (N). No: 49 of 1974•.

Prithvi Raj and Chaman Lal Itorora for the Petitioner.

F
/
l.p. Garg and K.B. Rohtagi for the Respondents.

The Judgment of the Court was delivered. by .

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
G
give the reasons therefor.

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
H
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
\idNt.is v. MUSTAQIM (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 A
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
B
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 c
is a total stranger to the estate of the deceased-surety, made an
application stating that his name be substituted as he was the grand-
nephew •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 D
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 E
'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.

The learned Subordinate Judge by his order dated November F
·. 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 con-
ducting the same and also to re.cord satisfaction of the decree and
G
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
214 ii984J i s.c.it.
application made by the petitioner treated as an application under
A 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.

Di~satisfied with· the impugned orders passed by the !carried
Subordinate Judge, the petitioner moved the High Court under Art.'
B 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•
c. 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
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
D Limitation Act, 1963,

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 ad- -~-

E justment 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
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,( 1) 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
G observed : ' . _· ~

"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
H when the matter lies only between the judgment·d.ebtor

'--~~~~~~~-
I
. [I) [1931} 58 lA SO,
YuNus v. MUSTAQIM (Sen, J.).

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
B
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
Art. 166, Sch.I, Lim. Act, 190.8."
~
c
'--' The Privy Council further observed :
..
"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 D
R.89, the Col)rt shall make an order confirming the sale
and thereupon the sale shall become absolute."

The petition under Art. 227 of the Constitution was wholly
misconceived. An ~ppeal lay from an order under O.XXI, r. 92 E
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 ques-
'
tion 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
G
. petitioner had the remedy of an appeal to the District Judge. Even
if no appeal lay against the impugned orders of the learned su!:>ord-
inate 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·
H
.ugned orders passed by the learned Subordinate Judge, under-Art.
'l,27 of the Constitution. A mere wrong .decision without anything
SiJPRiiME CoiJRTREPORTS [1984} l s.c,tl.
more is not enough to attract the jurisdiction. of the High Court
under Art. 227.

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·
B 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 l:>Y 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
D decision.

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

..
I