# MANINDRA LAND AND BUILDING CORPORATION LTD v. BHUTNATH BANERJEE AND OTHERS

- **Citation:** [1964] 3 S.C.R. 495
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Case number:** Civil Revision No. 74.8 of 1958
- **Bench:** K. Subba Rao, RAGHUBAR DAY..iL, J. R. MuoHOLK..iR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/manindra-land-and-building-corporation-ltd-v-bhutnath-banerjee-and-others-3001
- **Pages:** 11

## Headnote

Substitution-Application beyond time for
1J1ide
abatement-Lower Cfl'Urt's order 1et a•ide by High Coltf'I in
revi1ion-Propriety-Power of High Court in reviai•n-Oode
of Oifil Procedure, 1908 (Act V of 1908), •· 116, 0. XXll. rr.
4, 9 (2), (3)-111.lian Limitation Act, 1908 (Act 9 of 1908),
.,, 3,4,5, .Arta. 171,17'3.
The appellant made an applic:r.tion
beyond time for
substitution, on setting aside the abatement of the suit he had
filed against the father of the respondents. The Subordinate
Judge held that the appellant was prevented by sufficient cause
from continuing the suit and allowed the application. The
High Court in revi1ion, disagreed with the Subordinate Judge
and held that the appellant had entirely
failed to make out
any good cause for applying much later than the period
allowed by law.
Held that it was not open to the High Court to question
the findings of fact recorded hy a subordinate ceurt In eurcise
of its revisional jurisdiction under 1. 115 Code of Civil
Procedure, which, it is well •ettled, applies to cases iavolving
questions of jurisdiction.
Balakriahna Udayar v. Vande11a Aiyar, (1917) L.R. 44
I.A. 261, M/•. A. Batcliamian Sahel
and (Jo. v • .A. N.
Channiah, C.A. Nos. 452 and 487/62 decided on 19.10.62,
Joy Chand Lal Babu v. Kamalakaha Chauah,.ry, (1949) L.R.
76 I.A; 131 and De•hardeo Chamria v. Radha Ki•se• Chamria,
[1953] S.C.R. 136, referred to.
If in construing the necessary provisiom of the Limitation
Act or in determining which provision of the Act appl1111, the
Subordinate Court comes to an erroneous declsion, It ia open
to die Court iu revision to interfere with that 'concluaien,
,
....
Mcy 2.
1963
M411indra Land and
Building Corpn. Ltd
••
Bhutnath Banerje1
496 SUPREME COURT REPORTS [1964] VOL.
Held further, that the Subordinate Court had ei:c!uslve
jurisdiction to decide both the questions of fac.t, viz., whether
the appellant had sufficient cause for not making an application
for setting aside the abatement within the time prescribed
and whether the appellant was prevented from sufficient cause
from not making an application for
the substitution of the
legal representatives within the prescribed time.
Babu Ram v. M unna. Lal ( 1927) I.L.R. 49 All. 454, Bari
Bhikaji v. Naro Vishvanath (1885) I.L.R. 9 Born. 432, Dwarka
v. Union of India, (1954) I.L.R. 33 Pat. 176 and Baaantilata
v. Amar Nath, A.I.'.R.. (1950) Cal. 411, distinguished.
CIVIL APPELLA'.1.'ll J URISDIC'.l.'!ON : Civil Appeal
No. 524/62.
Appeal by special leave from
the judgment
and order dated July 24, 1958 of the Calcutta High
Court in Civil Revision No. 74.8 of 1958.
N. G. Chatterjee, E. Udayaratnam and D. N.
for the appellant.
B. Sen and S. Go8h, for respondents Nos. 1 to 3.
1963. May 2. The Judgment of the Court was
rlrlivered by
R•ghob.,Doyal J
RAGHUBAR DAYAL J.-This appeal, by special
leave, is directed against the order of the Calcutta
High Court disallowing the application of the appel·
lant under sub-r. (2) of r. 9 of Order XXII of
the Code of Civil Procedure, hereinafter called the
Code, for the setting aside of the abatement of the
suit it had instituted against the father of the
respondents.
The suit was instituted on April 29, 1952, by
the appellant corporation against Kalosashi Banerji,
father of the respondents, to recover a sum of money
due on a mortgage by deposit of title.deeds. The
defendant
contested
the suit.
Ultimately, a
'.
3 $.C.R..
SUPREME cothtT REPORTS
497
' .
1161
l
.\,;, '"
'
•
decree in the suit wa.s passed ex parte on
,February 8, 1955. On an application presented on
i..d .,,,,
June 11, 1955, final decree
was
passed
on
Buildi•iCirpn. Lt<
June 23, 1955.
,y,
•
The first application for execution of the
dec;ree presented on August 30, 1955, was dismissed
for default on .October 4, 1955, on account of the
not taking any steps .as a result of the
report of the process-server dated September 14, I 955,
stating that the defendant Kalosashi Banerji had
. died.
. The s.econd application for execution of the
decree

## Text

•
3 S.C.R.
SUPREME COURT REPORTS
495
MANINDRA LAND AND BUILDING
CORPORATION LTD.
v.
BHUTNATH BANERJEE AND OTHERS
(K. SUBBA RAO, RAGHUBAR DAY..iL
and J. R. MuoHOLK..iR, JJ.)
Substitution-Application beyond time for
1J1ide
abatement-Lower Cfl'Urt's order 1et a•ide by High Coltf'I in
revi1ion-Propriety-Power of High Court in reviai•n-Oode
of Oifil Procedure, 1908 (Act V of 1908), •· 116, 0. XXll. rr.
4, 9 (2), (3)-111.lian Limitation Act, 1908 (Act 9 of 1908),
.,, 3,4,5, .Arta. 171,17'3.
The appellant made an applic:r.tion
beyond time for
substitution, on setting aside the abatement of the suit he had
filed against the father of the respondents. The Subordinate
Judge held that the appellant was prevented by sufficient cause
from continuing the suit and allowed the application. The
High Court in revi1ion, disagreed with the Subordinate Judge
and held that the appellant had entirely
failed to make out
any good cause for applying much later than the period
allowed by law.
Held that it was not open to the High Court to question
the findings of fact recorded hy a subordinate ceurt In eurcise
of its revisional jurisdiction under 1. 115 Code of Civil
Procedure, which, it is well •ettled, applies to cases iavolving
questions of jurisdiction.
Balakriahna Udayar v. Vande11a Aiyar, (1917) L.R. 44
I.A. 261, M/•. A. Batcliamian Sahel
and (Jo. v • .A. N.
Channiah, C.A. Nos. 452 and 487/62 decided on 19.10.62,
Joy Chand Lal Babu v. Kamalakaha Chauah,.ry, (1949) L.R.
76 I.A; 131 and De•hardeo Chamria v. Radha Ki•se• Chamria,
[1953] S.C.R. 136, referred to.
If in construing the necessary provisiom of the Limitation
Act or in determining which provision of the Act appl1111, the
Subordinate Court comes to an erroneous declsion, It ia open
to die Court iu revision to interfere with that 'concluaien,
,
....
Mcy 2.
1963
M411indra Land and
Building Corpn. Ltd
••
Bhutnath Banerje1
496 SUPREME COURT REPORTS [1964] VOL.
Held further, that the Subordinate Court had ei:c!uslve
jurisdiction to decide both the questions of fac.t, viz., whether
the appellant had sufficient cause for not making an application
for setting aside the abatement within the time prescribed
and whether the appellant was prevented from sufficient cause
from not making an application for
the substitution of the
legal representatives within the prescribed time.
Babu Ram v. M unna. Lal ( 1927) I.L.R. 49 All. 454, Bari
Bhikaji v. Naro Vishvanath (1885) I.L.R. 9 Born. 432, Dwarka
v. Union of India, (1954) I.L.R. 33 Pat. 176 and Baaantilata
v. Amar Nath, A.I.'.R.. (1950) Cal. 411, distinguished.
CIVIL APPELLA'.1.'ll J URISDIC'.l.'!ON : Civil Appeal
No. 524/62.
Appeal by special leave from
the judgment
and order dated July 24, 1958 of the Calcutta High
Court in Civil Revision No. 74.8 of 1958.
N. G. Chatterjee, E. Udayaratnam and D. N.
for the appellant.
B. Sen and S. Go8h, for respondents Nos. 1 to 3.
1963. May 2. The Judgment of the Court was
rlrlivered by
R•ghob.,Doyal J
RAGHUBAR DAYAL J.-This appeal, by special
leave, is directed against the order of the Calcutta
High Court disallowing the application of the appel·
lant under sub-r. (2) of r. 9 of Order XXII of
the Code of Civil Procedure, hereinafter called the
Code, for the setting aside of the abatement of the
suit it had instituted against the father of the
respondents.
The suit was instituted on April 29, 1952, by
the appellant corporation against Kalosashi Banerji,
father of the respondents, to recover a sum of money
due on a mortgage by deposit of title.deeds. The
defendant
contested
the suit.
Ultimately, a
'.
3 $.C.R..
SUPREME cothtT REPORTS
497
' .
1161
l
.\,;, '"
'
•
decree in the suit wa.s passed ex parte on
,February 8, 1955. On an application presented on
i..d .,,,,
June 11, 1955, final decree
was
passed
on
Buildi•iCirpn. Lt<
June 23, 1955.
,y,
•
The first application for execution of the
dec;ree presented on August 30, 1955, was dismissed
for default on .October 4, 1955, on account of the
not taking any steps .as a result of the
report of the process-server dated September 14, I 955,
stating that the defendant Kalosashi Banerji had
. died.
. The s.econd application for execution of the
decree against . the defendant's legal representatives
was presented on September 20, 1956. On .January
30,
the respondents filed .an objection under
s.
of the Code and on March I. 1957, they dis·
closed the.date of death of Kalosashi to be July 20,
1954, by producing a certified copy of the death
register showing the date.
Thereafter,. the.appellant filed the application
for substitution, on setting aside the abatrment. The
respondents opposed this application and the learned
Subordinate Judge, however, held that the appellant
had established that it was prevented by sufficient
cause from continuing the suit and, allowing the application, set aside the abatement of the suit. The respon·
dents then went up in revision to the High Court. The
High Court disagreed with the Subordinate Judge and
held that the appellant had entirely failed to make out
any, good cause for the delay in applying for the setting
aside of the abatement and for applying for sub·
1titution much later. then the period allowed by law.
Kalosashi, the defendant, died on July, 20.
1954.
The suit abated on account of the plaintiff
having taken .no steps to briqg the legal represen·
tativea on record within the period of 90 days as
Jh,lnalh B_J,,
498
SUPRENIE COURT REPORTS[l964]VOL .
. 1963
JlllAiwa LmuJ and
llriilding Corpn. Lttl,
required by Art. 176 of I Schedule to the Limitation
Act.
The appellant could have applied for the
setting aside of the abatement within the next 60
days in view of Art. l '71.
Thus the application of
v.
Bhutnalh B"""j"
R4tkubar Dayal J;
the appellant presented on March 27, 1957, was a
very belated application. The aflpellant therefore had
to satisfy the Court in two respects. Firstly it ·had
· to satisfy the Court, in order to obtain advantage
of the provisions of s. I) of the Limitation Act which
applies to applications under r. 9 (2) of O. XXII in
view of sub-r. (3) of r. 9 of that Order, that
it had sufficient cause for not making the appli- .
cation within the period of limitation prescribed for
an application to set aside the abatement of the suit
and, secondly, it had to establish that it was prevented by any sufficient cause from continuing the suit
by making an application under r. 4 of 0. XXII for
the legal representatives of the deceased defendant to
be made parties to the suit within· the prescribed
period of limitation. To satisfy the Court in these
respects, the appellant had to show when it learnt
that the defendant had died prior to the passing of the
decree, that it was necessary to imp lead legal representatives of the deceased in the suit and that the delay
in knowing of this fact and in its applying for the setting aside of the abatement of the suit was not due
to !aches on its part. On these two questions of fact
the findings of the trial Court were in its favour.
It is not necessary for the
of this
appeal to state the reasons which were 'urged as a
justifiable excuse for the inability of the appellant
to take the necessary steps earlier. It is not open to
· the High Court to question the findings of fact recorded by a Subordinate Court in the exercise of its
revisional jurisdiction under s. 115 of the Code which,
it is well-settled, applies to cases involving questions
of jurisdiction, i. e., questions regarding the irregular
exercise or non-exercise of jurisdiction or the illegal
of jurisdiction by a Court and is
3 S.C.R.
SUPREME COURT REPORTS
499
directed against conclusion of law or fact in which
questions of jurisdiction are not involved : See
Bala Krishna Udayar v. Vasudeva Aiyar ('); Mf.' A.
Barohamian Sahib and Oo. v. A. N. Ohanniah (1).
This legal position is not
disputed
for the
respondents.
It is however contended for the respondent that
a decision on a question of limitation involves the question of jurisdict10n and in support of this contention
reliance is placed on the case reported as Joy Chand
Lal Babu v. Kamalaksha Ohaudhury (1). This case
laid down no different principle of law. What it ,
said in that connection was quoted with approval in
Keshardeo Ohamria v. Radha Kissen Ohamria (')
and those observations are :
"There have been a very large number of
decisions of Indian High Courts on section 115
to many of which their Lordships have been
referred. Some of such decisions prompt the
· observation that High Courts have not always
appreciated that although error in a decision of
a subordinate court does not itself involve that
the subordinate court has acted illegally or with
material irregularity so as to justify interference
in revision under sub-section (c), nevertheless,
if the erroneous decision results in the subordinate court exercising a jurisdiction not vested
in it by law, 01· failiug to exercise a jurisdiction
so vested, a case for nvision arises under subsection (a) or sub-section (b) and sub-section (c)
can be ignored."
The further observations in that case on which
learned coun.sel for the respondents mainly relies
are:
"The cases of Babu Ram v. Munna Lal (5) and
Hari, Bhikaji v. Naro Vishvanath (')may be
(!) (1917) L .R. 44 I. A. 261, 267.
.
O. At+52 and 487/62 decided on 19.10.1962.
!l (19+9. ) L.R. 76 !..' .. 131, 142.
14) [1953) S.O.R. 136, 152.
5 (1927)1,L,ll, i9 All, 4St.
(6J I 1835) 1.L.R, 9 Boai. 4$2.
lHJ
M•aw.L.ww
8oildin1 c.,,._ LU.
v.
B,,,,_ Bl-J•
llofW.. D'1fl/ I.
011iniro Land and
'.'Builiing C01pn. Ltd.
v.
, Bhutnath Ban11j11
'500
SUPREME COURT REPORTS [1964) VOL.
mentioned as cases in which a subordinate
court by its ·own erroneous decision (erroneous,
that is, in the view of the High Court), in the
one case on a point of limitation and in the
other on a question of res judicata, invested
itself with a jurisdiction which in law it did not
possess and the High Court held, wrongly their
Lordships think, that it had no power to inter· ·
fere in revision to prevent such a result."
These remarks are not applicable to the facts ofthe
present case. They apply to cases in which the law
•definitely ousts the jurisdiction of the Court to try a
certain dispute between the parties and not to cases
in which there is no such ouster of jurisdiction under
the provisions of any law, but where it is left to the
Court itself to determine certain matters as a result
of which determination the Court has to pass a certain
order and may, if necessary, •proceed to decide the
dispute between the parties. The distinction between
the two classes of cases is this. In one, the Court
decides a question of law pertaining to jurisdiction.
By a wrong decision it clutches at jurisdiction or
refuses to exercise jurisdiction. In the other. it
decides a question within its jurisdiction. In the
present case, the question whether there was a
sufficient cause was exclusively within the jurisdiction
of the Court and the Court could decide it rightly or
wrongly.
·
Section 3 of the Limitation Act enjoins a Court
to dismiss any suit instituted, appeal preferred and
application made, after the period of limitation pres·
cri bed therefor by the I Schedule irrespective of the
fact whether the opponent had set up the plea of
limitation or not. It is the duty of the Court not to
proceed with the application if it is made beyond
the period of limitation prescribed. The Court had
no choice and if in construing the necessary provision
of the Limitation Act or in determining which
3 S.C.R.
SUPREME COURT REPORTS
501
prov!Slon of the Limitation Act applies, the Subordinate Court comes to an erroneous decision, it is
open to the Court in revision to interfere with that
conclusion as that conclusion led the Court to assume
or not to assume the jurisdiction to proceed with the
determination of that matter.
Section 5 of the Limitation Act, on the other
hand, empowers the Court to admit an application,
to which its provisions are made applicable, even
when presented after the expiry of the· specified
period of limitation if it ia satisfied. that the applicant
had sufficient cause for not presenting it within time.
The Court therefore had jurisdiction to determine
whether there was sufficient cause for the appellants
not making the application for the setting aside of
the abatement of the suit in time and, if sd satisfied,
to admit it.
·
·
·
Babu &1m'a raae ('), referred to in the observation• relied on for the respondent was a case, which
according to the reports, was a case in whic;h tho
application for setting aside the ex parte decree
passed on December 15, 1925, was made on April
19, 1926, much beyond the. period of one montli
prescribed for making such applications from the
date of the decree. The question of limitation was.
simply ignored by the trial Court which restored tl;ie
suit. The High Court held that the mere
fl!.ctof the appellate Court's granting the application for
restoration amounted to a decision in law that the
application had been presented within time and that
sqch a decision, even if wrong, did not fall under
eii"her cl. (a), (b) or (c) of s. 115 C.P.C. It was this
view of the Court which was held by the Privy
Council to be wrong. The case does n()t relate to
the ·Trial Court's finding that there was sufficient
cause for not making the. applicatiqμ within the,
period prescribe9, ··
(ll (1927) 1. L. a. te AU .• 45*,
191f$
Maninira
61!tf
B•ild,.g
.
•• B•n1r/•f,
&1Aui11 Dqd /,
""
M....,,.L.Mt1M
lhril6t c.r,.. r.u.
v.
.,,,.,, ·llaerj,,
SUPREME COURT REPORTS [i964]'VOt..
The other case referred to viz., Hari Bhikaji'a
Gase ('), was where the Trial Court had gone wrong
on the question of res judicata. Section i l of the
Code prohibits any Court from trying any suit or
issue which would be covered by the various provisions of that section. There is no option in the
Court to try such a suit in any circumstance. Similar
was the Joy Chand Case ('),in which the judical
Committee had made those observations. In that
case the judgment debtors, in ·a decree passed in a
suit for the recovery of the ame!unt of money lent,
applied under ss. 30 and 36 of the Bengal Money
Lenders Act for relief.
The provisions of the Act
applied to suits for recovery of loans other than commercial Joan as defined in that Act. If the loan to
recover which a suit was instituted was a commercial
loan, relief claimed by the judgment debtors could
not have been granted to them as the Act did not
apply to commercial loans and as the Court had no
jurisdiction to give the necessary relief. The trial
Court held that the loan in that suit was a commercial loan and therefore did not come within the terms
of the Act. The High Court disagreed with that
view and held that the loan was not a commerical
loan. The High Court had therefore set aside the
order of the Subordinate Judge in the exercise of. its
revisional jurisdiction.
The Judicial Committee
considered whether the High Court was right in
doing so and said at p. 14,2 :
"In so doing, on the assumption that his decision
that the loan was a commercial loan was erro·
neous, he refused to exercise a jurisdiction
vested in him by law, and it was open to the
High Court to act in revision under su b-s. (b)
of s. 115."
and then followed the observations already quoted
above.
It is clear that on the decision of the
question the Subordinate Court had to determine in
(1) · ( 1885) 1,L.&, 9 Bom. 4S2.
(1949) L,11, 761.A. !SI, 142,
, .
3 s.c.R..
SUPREME COURT REPORTS
503
that case depended its very jurisdiction to take action
under that particular Act. It had thejurisdiction to
decide the question, but it could not give jurisdiction
to itself or give up the exercise of its jurisdiction in
the matter on the basis of its finding if that be erro·
neous. ·Neither the facts of that case are comparable
to the facts of the present case nor the observations
relied on the learned counsel for the respondents can
be applicable to this case, as here the Subordinate
Judge had jurisdiction to decide both the questions
of fact viz., whether the appellant had sufficient
cause for not making an application for setting aside
the abatement of the suit within the period prescribed
and therefore had sufficient cause for the Court's
exercising its discretion in extending tje period of
limitation in view of the provisions of s. 5 of the
Limitation Act and also the fact whether the appel·
lant was prevented from sufficient
from not
making an application for the substitution of the
legal representatives within the prescribed period of
limitation and thus continuing with the suit.
The
Court had the jurisdiction to decide both the ques·
tions of fact and also to proceed with the suit as a
result of its decision.
We may refer to two cases relied on for the
respondents.
In Dwarka v. Union of India('), an
application fo• setting aside an ex parte decree dated
November 30, 1951 was made on January 25, 1952.
Though made after the expiry of the period of limi,
tation, it was held to be within time on the view
that the Court, though open on January 2, 1952
must be treated as closed as no substantive work was
transacted on that day. The High Court held that
the trial Court was wrong in its view about the Court
being taken as closed on January 2, and therefore the
High Court interfered in revision, . The trial Court
mis-applied the provisions of s. 4 of the Limitation
Act which allows the making of an application on
the day on which the court reopens after the day on
(l) (!PS*) I, L. R, 5S Pal. 17i,
1961
Manindra "'1ul .,,
l Buadin{ c ... ,.. Lii,
v.
llhum•th B .. n;,,
&igluliar
J.
llO
-=-
M .. i•dr• L'ai al
Builiili1 C.r/111•' ·Ltd •
•••
Bhutaath B...,j,,
504
SUPREME COURT REPORTS [1964) VOL.
,
.
'
,
I
:
,
-
.
'·
,.
whi,ch the period of limitation prescribed for making
the ·application expires and ori wliicli day tlie cburt
happens to be' closed.
The trial· Court had gtiiie
absolutely agaii:tst the provisions of this section in
ignoring the fact that the Court
2, and not on January !!5, 1952. The High Ceurt, m
comirig to its conclusion, relied on the provisions or
s. 3'' ·of the Limitatfon
Act.
Section 5 or''ilie
Limitation Act is not applicable to· applications
for . setting . aside ex parte decrees
under . 'o:ix:·
r. 13 of the Code.
This case does not'dccide tliiu
the finding a bout the Court being satisfied about; the
exiitence · (if sufficient cause was such a finding as
i.QvolVed· juriSdiction and
could be
with by the High Court.
•
•
In the case reported as Baaantilalav . .Amar
Nath(') the High Court interfered a:s the Tria1 Coiirt
had mis-construed and· mis-applied the provisiOns of
ss.10 and 11 of the Indian Soldiers (Litigation) Wet
1925 (Act IV of 1925). The suit'was dismissed on
December 14, 1942.
An application for the setting
aside of the order of dismissal was' made· on Ju1Yt5,
1947. The plaintiff, wh'o WaS a soldier, served under
war conditions from May 23, 1942 ·.to' November
1946 when he was discharged. Thus the total period
the' plaintiff served under war conditions' 'was II: yeai:s.
6 months ·and 3 days. · 'fhe question was
this en.tire .
to be
in.
the period ofhm1tat1on for makmg. the appl1catwn
for' setting aside the
of the suit.
The Sub:
ordinate Judge' excluded it and 'the High Coutt
considered it unjustifiable to exclude the. peripd prior
to December 14, 1942, the date of the decree, 'as
that period could not have in any way prevented the
plaintiffs' in making the . application for. tfie' . settmg.
aside of the dismissal order. Here again, the . error
committed by the Trial Court was riQt in comihg
to a' finding of fact in i:o11nection with the 1
(I) A. I. R, 1950 Cal. 411.
3. S.C.R.
SUPJ,lEME- COURl' REPORTS
505
'
'
:
-
.
·; .
.
-
:
'
of s. 5 of the Limitation Act which applied to such
applications, but on the Court's deciding the question
of limitation in connection with which sub-s. (2) oC
1. 10 followed practically the language of s. 3 of the
Limitation Act as it said that no such application
would be entertalied unless it was made within a
certain time.
We arc thc;refqrc; of opinion that the High
Court fell in error In interfering with the finding of
.ar,rivcd
by, the Subordinate Judge with respect
to the appellants having sufficient cause for not
making an application for bringing the respondents
on record within time and for not applying for· the
aettinc aside of the abatement within time. We
allow the appeal with costs throughout, set aside the
otdcr of the Court below and restore that of the Trial
court. . It. will now proceed according to law with
the further execution of the decree on the second
application presented by the appellant for the
:·.
' -
'
Appeal allowed.
110
Ma11indra L•tul 11114
Builtfan1 (,1,jln. Lti •
••
Bhuhla Ill Ban1rj11