Whether executing court re-open question of trusteeship in execution of decree?

 It is well-settled that

an executing court cannot travel beyond the order or decree

under execution (see Rameshwar Dass Gupta v. State of

U.P. and Another, (1996) 5 SCC 728).

In the present case, the Trial Court had already considered

the evidence on record and given a finding that the Appellant

and his uncle were the trustees of the temple. Notably,

Umapathymurthy was a party to this suit and had contested it

by filing a written statement, claiming to be the eldest son of

Sadhasivamurthy. However, at that time, he did not put forth

any objections to the heir certificate of Sadhasivamurthy, which

was considered by the Trial Court while arriving at its finding.

This judgment was confirmed by the First Appellate Court and

no further appeal was preferred by the Respondents against it.

In light of this, the findings of the Trial Court have become final,

and Umapathymurthy as well as the other Respondents are

bound by them.

By allowing them to re-open the question of trusteeship by

way of an application in an execution petition, the High Court

has gone beyond the decree to be executed and exceeded its

revisional jurisdiction under Section 115 of the CPC.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7800 OF 2014

S. Bhaskaran Vs  Sebastian 

MOHAN M. SHANTANAGOUDAR, J.

Dated:SEPTEMBER 13, 2019

Print Page

Whether order demanding additional court fees is revisable?

 The learned counsel for the mortgagor (respondent 1) urged that an order demanding court-fees would not be revisable unless it affects the question of jurisdiction. In this connection, reliance is placed on the observations of a Division Bench of this Court in Wamanrao v. Vidyacharan, ILR (1952) Nag 527: (AIR 1953 Nag 122) wherein Sinha C. J. (as he then was) and Mudholkar J. (as he then was) laid down that an erroneous decision on a question of law which has no bear-

ing on the question of jurisdiction would not be revisable by the High Court exercising its powers under Section 115 of the Civil Procedure Code. So far as that proposition is concerned, it is in accordance with the later observations of their Lordships of the Supreme Court in Keshardeo v. Radha Kissen, 1953 SCR 136: (AIR 1953. SC 23), The question may arise in a case where additional court-fees are demanded and a claim or a counter-claim is rejected for non-payment of such court-fees.

9. In such a case, in my opinion, the question of jurisdiction would be involved as laid down by a Full Bench of this Court in Balaji Dhumnaji v. Mst. Mukta Bai, ILR (1938) Nag 106: (AIR 1938 Nag 122), wherein Stone C. J., Bose J. and Digby J. laid down that an order demanding additional court-fees on a memorandum of appeal would be revisable, though one accepting the court-fees would not be so revisable. The reason is obvious. In a case where, court-fees are demanded and the claim or the! counter claim is rejected for non-payment of court-fees, the Court would he exercising its jurisdiction illegally or would be refusing to exercise its jurisdiction properly and legally, if the order demanding court-fees is not warranted by the provisions of the court-fees Act. Therefore, there is no substance in ihe contention of the learned counsel for the first respondent that such an order would not be revisable under Section 115 of the Civil Procedure Code. I am of opinion that even having in view the dictum of their Lordships of the Supreme Court in 1953 SCR 130: (AIR 1953 SC 23), such an order would be revisable in exercise of revisions powers.

Madhya Pradesh High Court

Motilal Laxman And Ors. vs Purshottam Damodar And Ors. on 16 July, 1964

Equivalent citations: AIR 1966 MP 330

Bench: P Tare

Print Page

When party can challenge order passed by district court before high court by revision as well as by writ petition?

34. We, therefore, answer the reference as under:

(I) The view taken by the learned Single Judge in the Case of Dilip Bidesh & Ors. vs. Shivgopal Madangopal Chaurasia & Ors. that revision under Section 115 of the Code would not be tenable against the order under Section 26-A of the said Act does not lay down the correction position of law.

(II) The view taken by the learned Single Judge in the case of Dhuliabai Mana Praga and Ors. vs. Manikbai Vithalrao Bhusarath (Deceased), to the extent that revision under Section 115 of the Code is tenable against an order passed under the analogous provisions, is correct. However, the view that the writ petition would not be tenable under Article 227 of the Constitution of India against such an order, in our view, does not lay down correct position of law.

(III) In our considered view, a party aggrieved by the order passed under Section 26-A of the Provincial small cause courtsAct by the District Court would be at liberty to choose to file either Civil Revision Application under Section 115 of the Code or a petition under Article 227 of the Constitution of India.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition Nos. 5552 and 3431/2013

Decided On: 07.12.2016

 Gajanan and Ors. Vs.  Mohd. Jamil Mohd. Amad and Ors.

Hon'ble Judges/Coram:

B.R. Gavai and V.M. Deshpande, JJ.

Print Page

Whether Company will get the protection of Maharashtra Rent control Act if it fails to prove that on the date of filing of the suit, its paid-up share capital was below Rs. 1 Crore?

The facts necessary to be cited for adjudication of the above Civil Revision Application can in brief be stated thus:-

The Applicant herein is the original Defendant No. 1 in the suit in question being TER Suit No. 48/62/2009. The said suit has been filed by the Respondent Nos. 1 to 12 herein who are the original Plaintiffs. The said suit has been preceded by a Notice dated 11/02/2009, served/received by the Defendant No. 1 on 14/02/2009, by which the tenancy of the Applicant herein in respect of the plot of land in question came to be terminated. The said suit has been filed for possession of the premises. In so far as the plaint is concerned, it has been averred in the plaint that the Applicant herein is a public limited company and its share capital is over Rs. 1 Crore and therefore it is not entitled to the protection of the Maharashtra Rent Control Act, 1999 (for short "the Rent Act.) In the said suit the Respondent Nos. 1 to 12 herein filed an application (Exhibit 9) for interim relief.

3. To the said application, the Applicant herein i.e. the Defendant No. 1 filed a reply wherein a preliminary issue as regards jurisdiction of the Trial Court to entertain and try the suit under Section 41 of the Presidency Small Causes Courts Act (for short "the PSCC Act") was raised. It was the case of the Applicant that its share capital is Rs. 93,74,000/- which was below Rs. 1 Crore and therefore it is entitled to the protection of the Rent Act. 
 It is well settled that in so far as the revisionary jurisdiction under Section 115 is concerned, it is constricted, and only if there is an error of jurisdiction committed by the Courts below that interference with the orders passed by the Courts below is warranted. In the instant case, as indicated above the Defendant No. 1 has failed to prove its case that on the date of filing of the suit i.e. on 17/03/2009, its paid up share capital was below Rs. 1 Crore. As indicated above the circumstances on record are such that it makes the case of the Defendant No. 1 highly improbable whereas the case of the Plaintiffs as pleaded in the plaint can be said to be in the realm of probability.

IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 267 of 2017

Decided On: 07.06.2017

New Era Fabrics Ltd. Vs. Bhanumati Keshrichand and Ors.

Hon'ble Judges/Coram:

R.M. Savant, J.

Citation: 2017(5) MHLJ781,MANU/MH/1026/2017 

Print Page

When appellate court can permit parties to adduce additional evidence at appellate stage?

 We have considered the argument advanced on behalf of

the appellant and also perused the law laid down by this Court

as to the exercise of revisional power under Section 115 of the

Code in such matters. In Mahavir Singh and others v.

Naresh Chandra and another (2001) 1 SCC 309, explaining 

the scope of revision in the matters of acceptance of 

additional evidence bythe lower appellate court

 interpreting expression “or for anyother substantial cause”

 in Rule 27 of Order XLI, this Court

has held as under: -

“The words “or for any other substantial cause”

must be read with the word “requires”, which is set

out at the commencement of the provision, so that it

is only where, for any other substantial cause, the

appellate court requires additional evidence, that

this rule would apply as noticed by the Privy

Council in Kessowji Issur v. G.I.P. Rly. [ILR

(1907-08) 31 Bom 381]. It is under these

circumstances such a power could be exercised.

Therefore, when the first appellate court did not find

the necessity to allow the application, we fail to

understand as to how the High Court could, in

exercise of its power under Section 115 CPC, have

interfered with such an order, particularly when the

whole appeal is not before the Court. It is only in

the circumstances when the appellate court

requires such evidence to pronounce the judgment

the necessity to adduce additional evidence would

arise and not in any other circumstances. When the

first appellate court passed the order on the

application filed under Order 41 Rule 27 CPC, the

whole appeal was before it and if the first appellate

court is satisfied that additional evidence was not

required, we fail to understand as to how the High

Court could interfere with such an order under

Section 115 CPC.”

SC observed that under the scheme of Code of Civil Procedure, 1908 (for short "the Code") whether oral or documentary, it is the trial court before whom parties are required to adduce their evidence. But in three exceptional circumstances additional evidence can be adduced before the appellate court, as provided Under Section 107(1)(d) read with Rule 27 of Order XLI of the Code. Rule 27 of Order XLI. From the opening words of Sub-rule (1) of Rule 27it is clear that the parties are not entitled to produce additional evidence whether oral or documentary in the appellate court, but for the three situations mentioned therein, the parties are not allowed to fill the lacunae at the appellate stage. It is against the spirit of the Code to allow a party to adduce additional evidence without fulfillment of either of the three conditions mentioned in Rule 27.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO. 14055 OF 2015

A. Andisamy Chettiar Vs A. Subburaj Chettiar

Dated: December 08, 2015.

Prafulla C. Pant, J.

Citation: 2015(13)SCALE378: 2015(17) SCC 713

Print Page