# PANDURANG DHONI CHOUGULE v. MARUTI HARi JADHA V - April_ 26, 1965

- **Citation:** [1966] 1 S.C.R. 102
- **Court:** Supreme Court of India
- **Decided:** 1966
- **Case number:** Civil Appeal No. 163 of 1963
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, J.C. Shah, J. R. MuDHOLKAR, S. M. Snm1
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pandurang-dhoni-chougule-v-maruti-hari-jadha-v-april-26-1965-3471
- **Pages:** 8

## Headnote

Code of Civil Procedure, 1908 (5 of !908), s. 115-Revisional lu{isdiction of High Court-Tests--Cons.truction of docu111ent-Question of
law-When jurisdiction can be exercised.
~ =
A
B
•
--1
In a suit for redemption of a mortgage! filed by the respondents' predecessors on ~.mortgage executed by them in favour of the appellants'
C
predecessors, a deer~ was passed directing the respondents' predecessors
to pay a certain sum within a specified time to the appellant's predecessors
4
and- recover possession of the mortgage property and in case of failure
to pay within the sp<;1:ific time they shall be deemed to have lost th.e
right of redemption for all time.
According to
the!
respondents
ithe
money was not paid; even so, the relationship between the parties continued to be that of the mortgagors and mortgagees.
So the respondents
fil<:d
an application_nnder the Bombay Agriculturists Debtor> Relief Act
D
for adjustment of the debt, The appellants also filed an application for
adjustment of the debt due under the decree; but in doing so, they made
it clear that they were making the application as a matter of precaution
and without prejudice to their. contentions that the equity of redemption
had been extinguished and the parties no longer stood in the relationship
of creditors and debtors.
The trial court rejected the appellants' contention that the mortgage had been extinguished and held that the equity
E
of redemption still vested in the re$pondents; but as the
respondents'
applica.ti0n was barred. by time, it dismissed the respondents' application.
On appeal, the District Court held, inter alia, that the decree \Vas a composite decree and on the respondents' failure to pay the decretal amount
within the time specified, their right to redeem the mortgage \Vas extinguiShed by virtue of the express terms contained in it. and dismissed
the respondents' appeaJ.
On revision under s. 115 of the Code of Civil
Procedure, the High Court construed the decree as a preliminary decree
F
and found that the clause purporting to extinguish the equity of redemption did not ·effect its essential character as a preliminary decree and
did not in law put an end to the relationship of creditor and debtor
between the parties. In appeal to this Court, the
appellants contended
4
that in reversing the conclusion of the District Court, the High Court
exceeded its jurisdiction under s. 115 of the Code.
HELD : This contention was well founded and
must
be
upheld.
[106HJ
(While exercising its jurisdiction under s. 115 it is not competent to
the High Court to correct errors of fact however, gross they may be, or
even errors of law, unless the said errors have relation to the jurisdiction
of the court to try the dispute itself.
The tests laid down in Clauses
(a) (b) and (c) of s. 115, before the High Court exercises its revisional
jurisdiction, are, does the alleged n1is-construction of the statutory provision have relation to the eroneous assumption of the jurisdiction; or
the
erroneous
failure
to
exercise
jurisdiction;
or the exer·
cise of jurisdictlon illega11y or wi·th
material
irregularity by the
subordinate.' court.) It is well-settled that a plea of limitation or plan of
G
•
•
H
-
i
•
P. D. CHOUGULE v. M. H. JADHAV (Gajendragadkar, C.l.) 103
A
res judicata is a plea of law which concerns the jurisdiction of the court
which tries the proceedings. A distinction must be drawn betw~n errors.
committed by subordinate courts in deciding questions of law which have
relation to, or are concerned wi.th, questions of jurisdiction of the said
court, and error of law which have no such relation or connection. It
is undesirable and inexpedient to Jay do\vn general rule in regard to
this position. [107 A-E; 108 D-E]
B
c
D
E
F
. G
Manirtdra Land and Building Corporation Ltd. v. Bhutnath Banerjee
and Others, A.I.R. 1964 S.C. 1336 and Vora Abbasbhai Alinahomed v.
Haji Gu/amnabi lfaji Safihlwi, A.LR. 1964 S.C. 1341.
(Th~ construction of a document of title is no doubt a poin

## Text

102
PANDURANG DHONI CHOUGULE
v.
MARUTI HARi JADHA V
-
April_ 26, 1965
[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, J.C. SHAH,
J. R. MuDHOLKAR AND S. M. Snm1, JJ.]
Code of Civil Procedure, 1908 (5 of !908), s. 115-Revisional lu{isdiction of High Court-Tests--Cons.truction of docu111ent-Question of
law-When jurisdiction can be exercised.
~ =
A
B
•
--1
In a suit for redemption of a mortgage! filed by the respondents' predecessors on ~.mortgage executed by them in favour of the appellants'
C
predecessors, a deer~ was passed directing the respondents' predecessors
to pay a certain sum within a specified time to the appellant's predecessors
4
and- recover possession of the mortgage property and in case of failure
to pay within the sp<;1:ific time they shall be deemed to have lost th.e
right of redemption for all time.
According to
the!
respondents
ithe
money was not paid; even so, the relationship between the parties continued to be that of the mortgagors and mortgagees.
So the respondents
fil<:d
an application_nnder the Bombay Agriculturists Debtor> Relief Act
D
for adjustment of the debt, The appellants also filed an application for
adjustment of the debt due under the decree; but in doing so, they made
it clear that they were making the application as a matter of precaution
and without prejudice to their. contentions that the equity of redemption
had been extinguished and the parties no longer stood in the relationship
of creditors and debtors.
The trial court rejected the appellants' contention that the mortgage had been extinguished and held that the equity
E
of redemption still vested in the re$pondents; but as the
respondents'
applica.ti0n was barred. by time, it dismissed the respondents' application.
On appeal, the District Court held, inter alia, that the decree \Vas a composite decree and on the respondents' failure to pay the decretal amount
within the time specified, their right to redeem the mortgage \Vas extinguiShed by virtue of the express terms contained in it. and dismissed
the respondents' appeaJ.
On revision under s. 115 of the Code of Civil
Procedure, the High Court construed the decree as a preliminary decree
F
and found that the clause purporting to extinguish the equity of redemption did not ·effect its essential character as a preliminary decree and
did not in law put an end to the relationship of creditor and debtor
between the parties. In appeal to this Court, the
appellants contended
4
that in reversing the conclusion of the District Court, the High Court
exceeded its jurisdiction under s. 115 of the Code.
HELD : This contention was well founded and
must
be
upheld.
[106HJ
(While exercising its jurisdiction under s. 115 it is not competent to
the High Court to correct errors of fact however, gross they may be, or
even errors of law, unless the said errors have relation to the jurisdiction
of the court to try the dispute itself.
The tests laid down in Clauses
(a) (b) and (c) of s. 115, before the High Court exercises its revisional
jurisdiction, are, does the alleged n1is-construction of the statutory provision have relation to the eroneous assumption of the jurisdiction; or
the
erroneous
failure
to
exercise
jurisdiction;
or the exer·
cise of jurisdictlon illega11y or wi·th
material
irregularity by the
subordinate.' court.) It is well-settled that a plea of limitation or plan of
G
•
•
H
-
i
•
P. D. CHOUGULE v. M. H. JADHAV (Gajendragadkar, C.l.) 103
A
res judicata is a plea of law which concerns the jurisdiction of the court
which tries the proceedings. A distinction must be drawn betw~n errors.
committed by subordinate courts in deciding questions of law which have
relation to, or are concerned wi.th, questions of jurisdiction of the said
court, and error of law which have no such relation or connection. It
is undesirable and inexpedient to Jay do\vn general rule in regard to
this position. [107 A-E; 108 D-E]
B
c
D
E
F
. G
Manirtdra Land and Building Corporation Ltd. v. Bhutnath Banerjee
and Others, A.I.R. 1964 S.C. 1336 and Vora Abbasbhai Alinahomed v.
Haji Gu/amnabi lfaji Safihlwi, A.LR. 1964 S.C. 1341.
(Th~ construction of a document of title is no doubt a point of law.
Even so, it cannot be held to justify the exercise of the High Courts'
revisional jurisdiCtion under s. 115 of the Code because it has no relation to the jurisdiction of the Court. Like other matters which are
relevant and material in determining the question of the adjustment of
debts, the question about the existence of the debt has been left to the
determination of the courts which are authorised ·to administer the provisions of the Act; and even in dealing with such questions, the
trial
court or Dis.trict Court commits an error of la\V. it cannot be said that
such an error of law 'vould necessarily involve ihe question of the said
court's jurisdiction within the
metaning
of s.
115
of
the
Code.
[108H-!09C]
OBITER : When Legislature pass Acts dealing with socio-economic
matters, or make provisions for the levy of sales-tax, it is realised that
the operative provisions of such legislation present difficult problems of
construction; and as sometimes, the Act in question provides for a revisional
application to the High Court or authorises a reference to be made to
it.
In such cases, the High Court will undoubtedly deal with the problems raised by the construction of the relevant provisions in accordance
with the extent of the jurisdiction conferred on it by the material provisions contained in the statute itself.
Sometimes, however, no such specific
provision is made, and
the question raised in regard to the construction
of the provisions of such a statute reach the High Court under its general revisional jurisdiction under s. 115 of the Code. In this class of cases,
the revisional jurisdiction of the High Court has to be exercised in accordanco with the limits prescribed by the said section. [107 E-H]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 163 of
1963.
Appeal by special leave from the judgment and decree dated
October 31, 1960 of the Bombay High Court in Civil Revision
Application No. 2131 of 1957 .
S. P. Sinha and M. I. Khowja, for the appellants.
C. B. Aganvala and A. G. Patraparkhi, for the respondent<.
The Judgment of the Court was delivered by :
Gajendragadkar, C.J.
This appeal by special leave arises out
H
of proceedings initiated under the provisions of the Bombay Agricultural Debtors Relief Act, 1939 (No. 28 of 1939) (hereinafter
called 'the Act'). The respondents Maruti Hari Jadhav and two
104
SUPREME COURT
1 REPORTS
[1966] 1 S.C.R.
others moved the B.A.D.R. Court at Karad on ·May 26, 1949,
for adjustment of the debt alleged to be due from them to the
.appellants, P andurang Dhondi Chougule & others. Their case was
that the debt in question was due under a mortgage deed executed
by their grand-father in favour of the grand-father of the appellants
•On August 29, 18 81.
By this mortgage, six agricultural lands
situated at Kapil in the former State of Oundh had been mortgaged
to the mortgagee with possession for a sum of Rs. ,57 5. In 1908, the
respondents' predecessors-in-interest sued on this mortgage in 'the
Court of the Sub-Judge at Kapil (Civil Suit No. 28 of1908-09).
This suit was, however, withdrawn with liberty to file-a--freslf suit
Then followed another suit by the respondents in the same Cour~
for redemption of the mortgage (No. 102 ,of 1932-33).
On
September 2, 1936, a decree came to be passed in the said suit
According to the respondents, the decree directed them to pay
Rs. 3,677-12-6 within six months from the date on which it was
drawn, but the said money had not been paid; even so, the relationship between the parties continued to be that of the mortgagors
and the mortgagees, and so, they were entitled to claim adjustment of the debt in question.
The respondents also pleaded that
the decree which was passed in the said suit was in the nature of
-a preliminary decree, and though the appellants were entitled to
.apply for making the said decree final after the expiration of the
A
B
c
D
six months' period prescribed by it, they took no such action and
E
1he mortgage debt, therefore, remains unpaid and the .equity of
-redemption vesting in the respondents is unextinguished.
That,
in brief, is the nature of the clrum made by the respondents in
the application made by them under the Act for adjustment of
their debt due to the appellants.
It appears' that the State of Oundh merged in the erstwhile
"State of Bombay and thereafter, the Act was extended to the said
"State. That is how the respondents commenced the present pro-
-ccedings under the provisions of the Act thus extended to the
State of Oundh.
The appellants also made an application fo~ the adjustment
of the debt due under the decree in Suit No. 102/1932-33 in the
-Court of Joint Civil Judge, Karad; but in doing so, they made it
perfectly clear that they were making the application as a matter of
-precaution and without prejudice to their contention that the equity
of redemption had been extinguished and the parties no longer
stood in the relationship of creditors and debtors.
In fact, it
was the appellants the first made the application on May 19,
1949, and the respondents followed by their application on May
I
F
G
H
•
,
•
•
\'
•
•
A
B
c
D
P. D. CHOUGULE v. M. H. JADHAY (Gajendragadkar, C./.) 105
26, 1949.
For the purpose Gf hearing, these two applications were
consolidated by the trial Court.
At the hearing of these proceedings, the appellants raised
several contentions. They urged that the mortgage was extinguished and the respondents were therefore,
not entitled to claim
adjustment of the debt, and they also contended that the application made by the respondents was barred by time.
The trial
Judge rejected the appellants' argument that the mortgage had
been extinguished, and held that the equity of redemption still
vested in the respondents.
He, however, found that the respondents' application for adjustment of the debt was barred by time.
In the result, the respondents failed and their application was
dismissed.
The matter then went in appeal to the District Court, North
Satara.
The appellate Court held that the decree in suit No. 102
of 1932-33 amounted to a final decree which absolutely debarred
the right of the mortgagors to redeem the property in view of the
fact that they had failed to pay the decretal mnount within the
time prescribed by it.
It also agreed with the view taken by
the trial Court that the respondents' application was barred by
limitation.
In the result, the appeal preferred by the respondents
was dismissed.
E
The dispute then reached the Bombay High Court in its
revisional jurisdiction uader s. 115 of the Code. Before the High
Court it was urged th:it the Code of Civil Procedure did not apply
to the State of Oundh at the relevant time; that is why by an
interlocutory judgment, the High Court remanded the proceedings
to the trial Court with a direction that the issue as to whether
F the Code of Civil Procedure applied to the State of Oundh at the
relevant time, should be tried.
On remand, the tiial Court made
a finding that the Code of Civil Procedure had been made applicable to the State of Oundh as far back as 1909-10.
The High
Comt had also directed that the issue as to who was in possessioll
G of the property at the relevant time, should be tried; and the
finding returned by the trial Court was that the appellants were
in possession of the mortgaged property not as mortgagees, but as
owners from 2nd March, 1937.
H
After these findings were returned, the revision application
was argued before the High Court; and the main point which was
urged before the High Court at that stage was whether the
respondents' right to redeem the mortgage had been extinguished
by the decree passed in civil suit No. 102 of 1932-33. The High
106
SUPREME COURT
REPORTS
(1966] I S.C.R:
Court has differed from the District Court and has taken the
view that the decree did not determine the respondents' right to
redeem the mortgage.
In regard to the finding recorded by the
courts below that the respondents' application was barred by time,
the High Court took the view that the question as to whether
the application is within sixty years from the expiry of the period
prescribed in the mortgage deed for repayment is entirely irrelevant inasmuch as the said
application is substantially
for the
adjustment of debt under the decree passed in suit No. 102 or
1932-33.
On that view of the matter. the High Court has set
aside the orders passed by the courts below and has remanded
the proceedings to the trial Court with a direction that the application made by the respondents for adjustment of the debt 'hould
be tried in accordance with law.
It is agaimt thi' order that the
appellants have come to this Court by special leave.
Before proceeding to deal with the contentions raised bc[o;·e
us in the present appeal it would be convenient to <et out the
relevant portion of the decree in suit No. 102 of 1932-33.
The
operative part of the deC'"ec reads thus :-
"1l1e plaintiffs should pay to defendants I and 2
Rs. 3,677-12-6 within six months from today and should
recover possession of the suit property as the he;rs of
Gopala free from the mortgage.
In case the plaintiffs
do not pay the amount within the prescribed time, the
plaintiffs shall be deemed to have lost the right of redemption for all time".
The District Court h3s held that this decree is a composite decree
and on the failure of th~ respondents to pay the dccrctal amount
within the time specified, their right to redeem the mortgage is
extinguished by virtue of the express terms contained in it.
The
High Court has construed the decree as a preliminary decree an:!
has found that the clause purporting to extinguish th~ cquitv or
redemption does not affect its essential character as a preliminary
decree and docs not in law put an cad to the relationship of creditors and debtors between the parties.
The first question which falls for our decision in the present
appeal is whether the High Court was justified in inte•feoing with
the deci,ion of the District Court that the decree
in question
extinguished the respondents' right to redeem the mortga§e.
Mr. Sinha for the appellants contends that in reversing the conclusion of the District Court, the High Court has exceeded its
jurisdiction undeo s. 115 of the Code.
In our opinion, this contention is well-founded and must be upheld.
•
•
B
c
D
E
F
G
;
H
...
•
•
P. D. CHOUGULE v. M. H. JADHAV (Gaiendragadkar, C.l.) 107
A
(The povisions of s. 115 of the Code have been examined by
judicial decisions on several occasions. While exercising its jurisdiction under s. 115, it is not competent to the High Court to
correct errors of fact however• gross they may, or even errors of
law, unless the said errors have relation to the jurisdiction of
the Court to try the dispute itself.
As clauses (a), (b) and (c)
B of s. 115 indicate, it is only in cases where the subordinate Court
has exercised a jurisdiction not vested in it by law, or has failed
to exercise a jurisdiction so vested, or has acted in the exercise
of its
jurisdicHon
illegally or with
material
irregularity
that the revisional jurisdiction of the High Court can be properly
invoked) It is conceivable that points of law may arise in proc ceedings instituted before subordinate courts which are related
to questions of jurisdiction. It is well-settled that a plea of limitation or a plea of res ;udicata is a plea of law which concerns
1he jurisdiction of the court which tries the proceedings. A finding
on these pleas in favour of the party raising them would oust
D the jurisdiction of the court, and so, an erroneous decision on
these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of s. 115 of the Code.
But
an erroneous decision on a question of law reached by the subordinate court which has no relation to questions of jurisdiction
of that court, cannot be corrected by the High Court under
E
s. 115.
The history of recent legislation in India shows that when
Legislatures pass Acts dealing with socio-economic matters, or
make provisions for the levy of sales-tax, it is realized that the
operative provisions of such legislation present difficult problems
of construction; and so, sometimes, the Act in question provides
F for a revisional application to the High Court in respect of such
matters or authorises a reference to be made to it. In such cases,
the High Court will undoubtedly deal with the problems raised
by the construction of the relevant provisions in accordance with
the extent of the jurisdiction conferred on it by the material provisions contained in the statute itself. Sometimes, however, no such
G specific provision is made, and the questions raised in regard to
the construction of the provisions of such a statute reach the High
Court under its general revisional jurisdiction under s. 115 of the
Code.
In this class of cases, the revisional jurisdiction of the
High Court has to be exercised in accordance with the limits
prescribed by the said section. It is true that in order to afford
H
guidance to subordinate courts and to avoid confusion in the
admimstration of the specific law in question, important questions
relating to the construction of the operative provisions contained
L5Sup./65-8
108
SUPREME COURT
REPORTS
[1966] I S.C.R.
in such an Act must be finally determined by fae High Court;
A
but in doing so, the High Court must enquire whether a complaint
•
made against the decision of the subordinate court on tho ground
that it has misconstrued the relevant provisions of the statute,
attracts the provisions of s. 115. Does the alleged misconstruction
-0f the statutory provision have relation to the erroneous assumption of jurisdiction, or the erroneous failure to exercise jurisdicR
tion, or the exercise of jurisdiction illegally or with
material
irregularity by the subordinate court ? These are the tests laid
down by s. 115 of the Code and they have to be borne in mind
before the High Court decides to exercise its revisional jurisdiction
under it.
This question has been recently considered by this Court in
Man/ndra tand and Building Corporation Ud..
v.
Bhutnath
Banerjee and Others('); and
Vora Abbasbhai Ali1nahomed v.
Haji Gulamnabi Haji Safibhai( 2 ). The effect of these two decisions clearly is that a distinction must be drawn between the
c
errors committed by subordinate courts in deciding questions of
D
law which have relation to, or are concerned with, questions of
jurisdiction of the said court, and errors of law which have no
such relation or connection.
It is, we think, undesirable and
inexpedient to lay down any general rule in regard to this position.
An attempt to define this position with precision or to deal
with it exhaustively
roay create unnecessary difficulties.
It is
E
clear that in actual practice, it would not be difficult to distinguish
between cases where errors of Jaw affect, or have relation to, the
jurisdiction of the court concerned, and where they do not have
such a relation.
Considering the point raised by Mr. Sinha in the light of this
F
position, it seems to us that the High Court was in error in
assuming jurisdiction to correct what it thought to be the misconstruction of the decree passed in civil suit No. 102 of 1932-33.
As we have already seen, in the present debt adjustment proceedings, one of the points which arose for decision was whether the
mortgage debt was subsisting at the time wfien the respondents
G
made their application, and the District Court had found that the
respondents' equity of redemption had been extinguished.
This
finding was based on the construction of the said decree. It is
difficult to see how the High Court was justified in reversing this
finding under s. 115 of the Code. The construction of a decree
like the construction of a document of title is no doubt a point
II
of law.
Even so, it cannot be held to justify the exercise of the
(2) A.l.R. 1964 S.C. 1341.
-
P. D. CHOUGULE Y. M. H. JADHAV (Gajendragadkar, C.J.)
109
A High Court's revisional jurisdiction under s. 115 of the Code
because it has no relation to the jurisdiction of the Court. Like
other matters which are relevant and material in determining the
question of the adjustment of debts, the question about the existence of the debt has been left to the determination of the court•
which are authorised to administer the provisions of the Act; and
B even if in dealing with such questions, the trial court or the
District Court commits an error of law, it cannot be said that such
an error of law would necessarily involve the question of the
said courts' jurisdiction within the meaning of s. 115 of the Code.
We are, therefore, satisfied that on the facts of this case, the High
Court exceeded its jurisdiction in interfering with the conclusion
c of the District Court that the decree in question had extinguished
the respondents' equity of redemption.
This conclusion is enough to dispose of the present appeal,
because the main ground on which the High Court has reversed
the concurrent decision of the courts below dismissing the responD dents' application for adjustment of the debt, is furnished by its
finding that the decree in question did not extinguish the equity
of redemption vesting in the ~espondents. In fact, it was as a
result of this decision that the High Court reversed the finding
of the courts below that the respondents' application was barred
by time.
Having regard to the fact that we are inclined to take
E the view that the High Court exceeded its jurisdiction in reversing
the finding of the District Court as to the effect of the decree
in question, we do not think it is necessary to consider the further
question as to whether the High Court was right in holding that
the decree in question was a preliminary decree and the clause
which purported to extinguish the equity of redemption was inF operative and invalid and as much, it did not affect the essential
character of the decree as a preliminary decree.
G
The result, is, the appeal is allowed, the order passed by the
High Court is set aside and that of the District Court restored.
There would be no -order as to costs.
Appeal allowed.