# Shankar Sitaram Sontakke · and Another v. Balkrishna Sitaram · Sontakke and Otherf

- **Citation:** [1955] 1 S.C.R. 108
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shankar-sitaram-sontakke-and-another-v-balkrishna-sitaram-sontakke-and-otherf-312
- **Pages:** 10

## Headnote

1954
Shankar Sitaram
Sontakke
· and Another
v.
Balkrishna
Sitaram · Sontakke
and Otherf.
Ghulam Hasan J.
1954
April 14.
108
SUPREME COURT REPORTS
[1955]
the motor business subsequent to Mar.ch 31, 1946. His
subsequent suit to enforce a part of the claim is founded
on the same cause of action which he deliberately relinquished. We are clear, therefore, that the cause of
action in the two suits being the same, the suit is barred
under Order II, rule 2(3), of the Civil Procedure Code.
As the suit is barred both by res judicata and Order
II, rule 2(3), of the Civil Procedure Code, no further
question as to the applicability of section 90 of the
Indian Trusts Act can possibly arise under the circumstances'.
·· ·
'·'. The result is that ·we allow the appeal and dismiss
the suit with costs throughout.
Appeal allowed.
MANILAL MOHANLAL SHAH AND OTHERS
ti.
SARDAR SAYED AHMED SAYED MAHAMAD AND
ANOTHER.
·[MEHR CHAND MAHAJAN C.J., VIVIAN BosE and
GHULAM HASAN JJ.]
Civil Procedure Code (Act V of i908), Order XX!, rules 84 and
85-Provisions requiring deposit of 25 Per cent of purchase money
t'mmediately after
sale· and payment of balance within 15 days of
·-~
J
the sale-Whether mandatory-Non-compliance with such provisions
llllii
-Legal effect thereof on sale-Inherent
powers-Whether can be
exercised-Civil Procedure Code-Order 21, rule 72-Decree-holder
not to bid for or purchase property without permission-This provision direc~ory.
.
r
Held, that the provisions' of rules 84 and 85 of Order XX! of,-4
thC CoOe of Civil Procedure requiring the deposit of 25 per cent of
"·.,.
the purchase · money immediately on the person
being declared as
a· purchaser and the payment of the balance within 15 days of the
sale are mandatory and if ·these provisions are not complied with
there is no sale at all.
·
4
N:oll-payme"nt of the price· .on the part of the def a lilting
purchaser 'renderS'.the Sa_le proceedings as a complete nullity .
. The inhe'rent powers
Of the' ·court cannot be anowed
to· circμmve~r, the !11-a~datory provisions
of ' the · ~ode and relieve the 4 ·~
purchasets of. their obligation· -to make the deposit.
-
I
-
S.C.R.
SUPREME COURT REPORTS
109
Under Order XXI, rule 72, of the Code
of Civil Procedure a
<lecree-holder
cannot · purchase
property at the Court-auction
in
execution of his own
decree without the express permission of the
Court and that when he does so with such permission, he is entitled
to a set-off, but if he does so without such permission, then the court
has a discretion to set aside the sale upon the
application by the
judgm<'.nt-debtor,
or any other person whose interests are affected
by the sale.
As a matter of pure
construction
this provision is
directory and not mandatory.
Rai Radha Krishna and Others v. Bisheshar Sahai and Others
( 49 I.A. 312), Munshi Md. Ali Meah v. Kibria Khatun (15 Weekly
Notes (Cal.) p. 350), Sm. Annapurna Dasi v. Bazley Karim Pezley
Moula (A.LR. 1941 Cal. 85), Nawal Kishore and Others v. Buttu
Mal and Subhan Singh (I.L.R. 57 All. 658), Haji Inam Ullah v.
Mohammad Idris (A.I.R. (30) 1943 All. 282), Bhim Singh v. Sarwan
Singh (I.L.R. 16 Cal. 33), Nathu Mal v. Malawar Mal and Others
(A.LR. 1931 Lah. 15) and A. R. Davar v. Jhinda Ram (A.I.R. 1938
Lah. 19 8) referred to :
,.A
CIVIL
APPELLATE
JuRrsmcnoN: Civil
Appeal No.
93 of 1953.
Appeal by Special Leave granted by the Supreme
Court of India, by its Order dated the 5th March, 1951,
from the

## Text

1954
Shankar Sitaram
Sontakke
· and Another
v.
Balkrishna
Sitaram · Sontakke
and Otherf.
Ghulam Hasan J.
1954
April 14.
108
SUPREME COURT REPORTS
[1955]
the motor business subsequent to Mar.ch 31, 1946. His
subsequent suit to enforce a part of the claim is founded
on the same cause of action which he deliberately relinquished. We are clear, therefore, that the cause of
action in the two suits being the same, the suit is barred
under Order II, rule 2(3), of the Civil Procedure Code.
As the suit is barred both by res judicata and Order
II, rule 2(3), of the Civil Procedure Code, no further
question as to the applicability of section 90 of the
Indian Trusts Act can possibly arise under the circumstances'.
·· ·
'·'. The result is that ·we allow the appeal and dismiss
the suit with costs throughout.
Appeal allowed.
MANILAL MOHANLAL SHAH AND OTHERS
ti.
SARDAR SAYED AHMED SAYED MAHAMAD AND
ANOTHER.
·[MEHR CHAND MAHAJAN C.J., VIVIAN BosE and
GHULAM HASAN JJ.]
Civil Procedure Code (Act V of i908), Order XX!, rules 84 and
85-Provisions requiring deposit of 25 Per cent of purchase money
t'mmediately after
sale· and payment of balance within 15 days of
·-~
J
the sale-Whether mandatory-Non-compliance with such provisions
llllii
-Legal effect thereof on sale-Inherent
powers-Whether can be
exercised-Civil Procedure Code-Order 21, rule 72-Decree-holder
not to bid for or purchase property without permission-This provision direc~ory.
.
r
Held, that the provisions' of rules 84 and 85 of Order XX! of,-4
thC CoOe of Civil Procedure requiring the deposit of 25 per cent of
"·.,.
the purchase · money immediately on the person
being declared as
a· purchaser and the payment of the balance within 15 days of the
sale are mandatory and if ·these provisions are not complied with
there is no sale at all.
·
4
N:oll-payme"nt of the price· .on the part of the def a lilting
purchaser 'renderS'.the Sa_le proceedings as a complete nullity .
. The inhe'rent powers
Of the' ·court cannot be anowed
to· circμmve~r, the !11-a~datory provisions
of ' the · ~ode and relieve the 4 ·~
purchasets of. their obligation· -to make the deposit.
-
I
-
S.C.R.
SUPREME COURT REPORTS
109
Under Order XXI, rule 72, of the Code
of Civil Procedure a
<lecree-holder
cannot · purchase
property at the Court-auction
in
execution of his own
decree without the express permission of the
Court and that when he does so with such permission, he is entitled
to a set-off, but if he does so without such permission, then the court
has a discretion to set aside the sale upon the
application by the
judgm<'.nt-debtor,
or any other person whose interests are affected
by the sale.
As a matter of pure
construction
this provision is
directory and not mandatory.
Rai Radha Krishna and Others v. Bisheshar Sahai and Others
( 49 I.A. 312), Munshi Md. Ali Meah v. Kibria Khatun (15 Weekly
Notes (Cal.) p. 350), Sm. Annapurna Dasi v. Bazley Karim Pezley
Moula (A.LR. 1941 Cal. 85), Nawal Kishore and Others v. Buttu
Mal and Subhan Singh (I.L.R. 57 All. 658), Haji Inam Ullah v.
Mohammad Idris (A.I.R. (30) 1943 All. 282), Bhim Singh v. Sarwan
Singh (I.L.R. 16 Cal. 33), Nathu Mal v. Malawar Mal and Others
(A.LR. 1931 Lah. 15) and A. R. Davar v. Jhinda Ram (A.I.R. 1938
Lah. 19 8) referred to :
,.A
CIVIL
APPELLATE
JuRrsmcnoN: Civil
Appeal No.
93 of 1953.
Appeal by Special Leave granted by the Supreme
Court of India, by its Order dated the 5th March, 1951,
from the
Judgment
and Decree dated the 28th
January, 1949, of the
High Court of Judicature at
J Bombay in Appeal from Order No. 43 of 1947 arising
)
out of the Order dated the 14th April, 1947, of the
/
-
Court of the Joint First Class Sub-Judge at Ahmedabad
in Darkhast No. 249 of 1940.
.
Appellant No. I in person for self and co-appellants.
C. K. Daphtary, Solicitor-General for India (!. B.
Dadachanji and A. C. Dave, with him) for respondent
No. 1.
. 1954.
April 14. The Judgment of the Court was
delivered by
GHULAM HASAN J.-This appeal ?rought by the
auction-purchasers by special leave
raises
the question
of the validity of a sale of certain properties which
took place on August 13, 1942. The respondents are
the judgment-debtor and
the
legal
representative
of
the deceased decree-holder.
The decree-holder applied on March 30, 1940, for
execution of his decree by sale of 4 lots , of property
1954
M anilal Mohan/al
Shah arul Othus
v.
Sardar Sayed
Ahmed Sayed
Mahmedand
Another.
110
SUPREME COURT REPORTS
[1955] r--
,,• ... 1954, .
belonging to' the judgment-debtor. The properties were
Manilai Mohan/al . valued at Rs.
1,50,000 and were subject · to a previous
S""!' and., Others
mortgage of Rs.
60,000 existing in favour of
the
iiarda~'Sajed
auction-purchasers.
It appears
that under
the
terms
Ahm<N Si!J!ed
of the mortgage-deed the mortgagees were entitled to
Mahniiid and
Another
proceed in the first instance against the first 3. lots and
against the fourth lot only in the event of a deficiency
Ghulam Hasan J.
......_.,.._<
'in .'sale price to . cover the decretal amount. The first
,
3 lots with which alone we are concerned in the appeal
were sold to the mortgagees for Rs. 53,510 on August 13,
1942. They were scild free from the encumbrance under
the order . of the Court passed at the instance of the
decree-holder and the mortgagees but without notice
to the judgment-debto~. It may, however, · be
no,ted
that on the application of certain third parties their
~ight of annuity over the properties sought to be sold l..
was nptified in the sale proclamation. On the same
date 'Hi~ mortgagees. applied for a set-off stating that
the purchase · price was Rs. 53,510 while the amount
Clue to them was Rs. 1,20,000. The Court allowed the
set-off \hen • and there. It is' important to bear in mind
that .the mortgagees had filed no suit and obtained no.
decr~e to recover the money due on the mortgage.
I,~ .
· The order : notifying the
~!aim to annuity was
challenged by the judgment-debtor in revision to the
High Court but · it ' was dismissed on November 10,
1943, by Sen J. who observed that as the sale had
already taken place, the proper remedy of the judgment-debtor was to move the Court for setting aside the
sale.
Thereupon · the
judgment-debtor
applied
on
November 20,
194~, under Order XX!,. rule 90, of the
,
Civil Procedure
Code
to have
the · sale
set aside · _..
(Exhibit 5p. Allegations imputing fraud and collusion
-.
to th'e dwrtgagees were made . in the application, in
particular .it. was. alleged . that the 3 lots were purchased
at. a grossly" inaaequate price 'l:iy
under~yaluing them
..
. i'n ',the·' proClaination and , that
the. mortgagees
not
having paid 25% of the bid, the sale .should not have
been sanctione~ .in ,their, favour:" Whik this application
was. pending, the judgment-debto'r made. another. application on January 15,
1947, • challenging the sale as . a
nullity on the ground that the purchaser had neither
-
-
I
S.C.R.
SUPREME COURT REPORTS
111
~ made the deposit required under rule 84 of Order XXI,
nor paid the balance of the pur.chase-price
as
required
by rule 86, and praying for resale of the property to
realise
the
price.
The order allowing set-off was
attracted as
being without jurisdiction. No separate
order was passed on this application as the application
Exhibit 51
was
granted on the same grounds. The
trial Court found that at the time of attachment on
>---c April 30, 1940, lots Nos. 1 and 2 and lot No. 3 were
"'
valued at Rs. 40,000 each separately
but at the time
of proclamation of sale on March 6,
1942, the first
two were
valued
at Rs. 45,000 and the third at
Rs. 8,000 only. The property did not consist of mere
survey numbers but admittedly
had
bungalows, and
superstructures and in the opinion of the Court the
subsequent valuation was bound to mislead bidders .
......l The Court, however, set aside the sale on the ground
that the provisions of Order XXI, rules 84 and 85, had
not been complied with in that the price was not deposited but a set-off was wrongly claimed and ailowed in
the absence of the judgment-debtor by the Court which
had no authority or jurisdiction. The Court observed.
"There is nothing to show that these opponents
took any permission from the Court to bid at the auc-
-·" tion and in fact they could hardly have obtained any
such permission, they being mortgagees whose dues
had yet to be proved and determined. If they could
ask for set-off, there is no reason why they should not
be required also to seek previous permission from the
Court to bid under Order XXI, rule 72, of the Civil Procedure Code.
It
may
be noted
that one of
these
opponents is himself a pleader
and he was not
._justified in taking such an unauthorised
order . from
.-J
the Court without fully acquainting with all
the facts.
Under all
these
circumstances, these opponents can
with little justification avoid the consequences
of noncompliance with the provisions of Order XXI, rules 84
and 85, referred to above. Without proving their claim
under the mortgage, they have succeeded in purchasing for a gross under-value these properties and even
-
t
that value they have not paid in Court by taking re-
.,.•QP course to the device of set-off ........................... .
. . . . .. .. . . . . .. . . .. . In my opinion, there could not be a
1954
Manila! Mohan/al
Shah and Others
v.·
Sardar Sayed
Ahmed Sayed
Mahmadand
Another. ·
Ghulam Hasan].
1954
Manilal.Mohanlal
Sha4 and Others
. ,
'II•
.
Sarda Sqytd
Ahmed Sayed
Mahmadand
Another.
.'
Chu.lam Hasan J.
112
SUPREME COURT REPORTS
[1955J r
more fraudulent
and materially irregular · procedure
thari what has. taken place in the present case at the
instance of
these
mortgagees, to the great detriment
and injury o( the present applicant, viz., the judgmentdebtor."
The Court held that the application under rule 90
was barred by limitation but this being a case of a
void sale and not of a mere material irregularity
the
Court was bound to re-sell the property irrespective of
any application being made by
the
judgment-debtor.
.
The High Court of Bombay (Chagla C. J. and
Gajendragadkar J.)
dismissed
the
appeal
of the
.mortgagee-purchasers on the ground that . the order of
the trial Court was under Order XXI, rule 84
and/or
~.,.
rule 86, of the Civil Procedure Code and therefore no .L
appeal lay against such .and order. The High Court held
that the order of set-off was without jurisdiction and the
subsequent deposit of the purchase price on December
14, 1945, made long after the period . had elapsed was
of no avail.
One of the auction-purchasers, who is a pleader, has
himself argued the
appeal before us.
The principal
question which falls to be considered is whether the -,. .
failure to make the deposit under Order XXI, rules 84
and 85, is only a material irregularity in the sale which
can only
be set aside under rule 90 or whether it is
wholly void.
It is
argued that the case falls
within
the former category and the application under rule 90
being
barred
by
limitation, the sale
cannot
be
set aside.
It is also contended that the Court having
\
,
once allowed the set-off and condoned .the failure
to
.
deposit, the mistake of the . Court should not be allowed--',
to prejudice the purchasers who would certainly
have
~
depc;>sited
the purchase price but for the mistake. We
are of opinion ·that . both the contentions are devoid of
substance.
In o.rder. · to . resolve
this contrnversy
a
reference to the relevant rules of Order XXI of the Civil
Procedure Code will be necessary.
These rules are 72,
Ii
-
84, 85 .and 86 :
*
"72. · (1) No
holder
of a decree in e~ecution of _..... .......
which property is sold shall, . without the express permission of the Court, bid for or purchase the property.
---
S.C.R.
SUPREME COURT REPORTS
113
}----:
(2) Where a decree-holder purchases with such
permission, the purchase-money and the amount due on
the decree may, subject to the provisions of section 73,
be set off against one another, •.... , ••. , , •... _ ••
(3) Where a decree-holder purchases, by himself
or through another person, without such · permission,
the Court may, if it thinks fit, on the application
of the judgment-debtor or any other person whose
interests are affected by the sale, by order set aside
the sale ; ....................................... .
"84. (1) On every sale
of
immovable
property
the person declared to be the purchasei: shall pay immediately after such declaration a deposit of twenty-five
per cent. on the amount of his purchase-money to the
officer or other person conducting the sale, and in
default of such deposit, the property shall forthwith be
resold.
(2) Where the decree-holder is the purchaser and
is entitled to set off the purchase-money under rule 72,
the Court
may dispense with the requirement of this
rule·
"85. The full amount of purchase-money payable
shall be paid by the purchaser into Court before the
Court closes on the fifteenth day from the sale of the
property:
Provided that, in calculating the amount to be so
paid into Court, the purchaser shall have the advantage
of any set-off to which he may be entitled under rule 72.
"86. In default of payment within
the
period
mentioned in the last preceding rule, the deposit may,
if the Court thinks fit, after defraying the expenses of
the sale, be forfeited to the Government, and the property shall be re-sold,
and
the
defaulting purchaser
shall forfeit all claim to the property or to any part of
the sum for which it may subsequently be sold."
The scheme of the rules quoted above may be shortly
stated. A decree-holder cannot purchase property at
the Court-auction in execution of his own decree without the express permission of the Court and that when
he does so with such permission, he is entitled to a
set-off, but if he does so without such permission, then
15
1954
Manila/ Mohanlal
Shah and Others
v.
Saria 1SaJ1d
Ahmea SayeCl
Mahmedand
Another.
Ghulam Hasan .J.
. 1954
Manildl Mohanlal
Shah and· Others
. '. v .. ''
Sardar_$ayed
.AhmeJ'Sayed
Mahmidand
· · Anothe;
Ghula~ Hasan J.
114
SUPREME COURT REPORTS
[1955]
the Court h~s ; discretion to . ~et aside the sale upon the
application
by
the
judgment-debtor, or
any
other
person whose interests are affected by ·the sale (Rule 72) .
As a matter of pure .construction this provision is
obviously
directory
and
not
mandatory-:-See . Rai
Radha Krishna and Others
v. Bisheshar Sahai and
Others( 1 ). The moment .. a person is declared to be the
purchaser, he is bound to deposit 25 per cent. of the
purchase-money unless he happens to be the decreeholder, in which case the Court may not require him to
do so (Rule 84).
· ·
··
·
The. provisi.on. regarding the deposit. of 25 per cent.
by the purchaser other than the decree-holder is mandatory as
the language of the rule suggests. The full
amount of the purchase-money
must be paid within
fifteen days from the date of the sale
but the de~ree
holder is entitled to the advantage
of. a
set-off. The
provision
for
payment
is,
however,
mandatory .....
(Rule 85). If the payment is not made within the
period of fifteen ·days,
the Court has the discretion to
forfeit
the deposit, and there the discretion
ends b\lt
the obligation of the Court to re-sell
the
property is
imperative.
A further consequence
of non-payment is
that the defaulting purchaser forfeits
all
claim to the
property ... (Rule . 86).
It is not denied that the pur.chasers had not obtained
any decree on foot of their mortgage and the claim of
Rs. 1,20,000 which they put forward
before the execution Court had not been adjudicated upon or determined. The mortgagees, one ·of whom is a pleader,
a1)plied on the day of the sale clairriing a set-off on foot
of the mortgage. The Court without applying its mind
to the question immediately passed the order allowing
the set-off.
This claim was
obviously
not adj11issible
under the provisions of rule 84 which applies only to
the decree-holder.
The Court had clearly no
jurisdiction to allow a set-off. The appellants misled the Court
into 1.;assing ~ wrong order and obtaining
the
advantage of a set-off while they knew
perfectly well
that
thev had go.t no <kcre'e on foot
of the mortgage and
tlieir claim was undetermined. There was default in
(1) 4g I.A. 312.
A
--
,.
--
..
S.C.R.
SUPREME COURT REPORTS
115
depo~iting 25
per cent. of the purchase-money and
further there was no payment of the full amount of the
purchase-money within fifteen days from the date of
1he sale.
Both the deposit and the payment of the
purchase-money being mandatory under the combined
efle.ct of rules 84 and 85, the Court has the discretion to
forfeit the deposit but it was bound to re-sell the property with the result that on default the purchaser
forfeited all claim to the property. These provisions
leave no doubt that unless the deposit and the payment
:are made as
required by the mandatory provisions of
:the rules, there is no sale in the eye of law in favour of
the defaulting purchaser
and
no right
to own
and
possess the property accrues to him.
In two cases decided by the Calcutta High Court, viz.,
.Munshi Md. Ali Meah v. Kibria Khatun( 1 ), and Sm.
Annapurna Dasi v. Bazley Karim Fazley Moula( 2 ), the
sale was held to be no sale where the purchaser had
failed to deposit the balance of the purchase-money as
required by rule 85. A similar view was taken by a
Division Bench of the Allahabad High Court in Nawal
Kishore and Others v. Buttu Mal and Subhan Singh(3 ).
The provisions of rule 86 were held to be mandatory
in another decision of the same Court, Haji lnam Ullah
v. Mohammad Idris( 4 )
and it was held that the Court
was bound to re-sell the property upon default irrespective of any application being made by any party to
the proceedings. The case of Bhim Singh v. Sarwan
Singh ( 5 )
was a case of failure to make a deposit as
required by section 306 of the Code of
1882
( corresponding to rule 85 of the present Code). The Court
treated it as a material irregularity
in conducting the
sale which must be enquired into upon the application
under section 311,
(corresponding to rule 90
of
the
present Code), and not by a separate suit to set aside
the sale. The Court did not apply its mind to the question whether the provisions of section 306 being mandatory the sale should not be treated as a nullity for
non-compliance with those' provisions. The decision of
(1) 15 Weekly Notes (Cal.) p. 350.
(4) A.LR. (30) 1943 All. 282·
(2) A.LR. 1941 Cal. 85.
(5) 16 Cal. 33.
(3) 57 All. 658 ..
1954
Mani/al Moh an la
Shah and Others
v.
Sardar Sa)•ed
AhmLli Sayed
Mahmadand
Another.
Ghulam Hasan].
1954
Manilal Mohunlal
Shah and Others
v.
Sarda'r Sayed
Ahmed Sayed
Mahmadand
Another.
Ghulam Hasan J.
116
SUPREME COURT REPORTS
[1955]
a single Judge (Tapp J.) in Nathu Mal v. Malawa Mal
and Others( 1 ) is distinguishable upon its facts. There
the auction-purchaser had actually tendered
the money
but the payment was postponed by consent of parties
pending the disposal of the objection by the judgmentdebtor. We do not agree with the remark made in that
case that the provisions of rule 85 are intended "to be
directory only
and
not
absolutely
mandatory."
A
Division Bench of the same Court (Tek Chand and
Abdul Rashid JJ.) held in A; R. Davar v. Jhinda Ram (
2 ),
that the Court had no jurisdiction to extend the time
for the payment of the balance of the purchase-money
under rule 85 and must order resale under rule 86.
Having examined the language of the relevant rules
and the judicial decisions bearing upon the subject we
are of opinion that the provisions of the rules requiring
the deposit of 25 per cent. of the purchase-money
immediately arr the person being declared as a purchaser and the payment of· the balance within · 15
days
of the sale are
mandatory and upon non-compliance
with these provisions there is no sale at all. The rules
do not contemplate that there can be any sale in favour
of a purchaser without depositing 25 per cent. of the
purchase-money in the first · instance and
the balance
within 15 days. When there is no sale within the contemplation of these rules, there can be no question, of.
material irregularity in the ~onduct of the sale.
Nonpayment of the price on the part of the defaulting
purchaser renders the sale proceedings
as
a complete·
nullity. The very fact that the Court is bound to re-.
sell the property in the event of a default shows that'
the previous proceedings for sale are completely wiped
out as if they do not exist in the eye of law. We hold,
therefore, that in the circumstances of the present case·
there was no sale and the purchasers acquired no · rightso
at, all.
.,.
It was urged before us that the Court .could allow a·
set-off
in·
execution proceedings
under its inherent·
powers apart from the provisions of Order XXI, rule 19,
of the Civil Procedure Code. We do not think that the
#;
inherent powers
of the Court could
be invoked
to•
(1) A.LR. 1931 Lah. 15.
(2) A.>.R. 1938 Lah. 198.
'
'~
...
S.C.R.
SUPREME COURT REPORTS
117
circumvent
the mandatory provisions of the Code and
relieve the purchasers of their obligation to make the
deposit. The appellants
by misleading the Court want
to benefit by the mistake to which they themselves
contributed. They cannot be allowed to
take advantage of their own wrong.
The appeal fails and is dismissed · with costs .
Appeal dismissed.
KIRAN SINGH AND OTHERS
v.
CHAMAN P ASWAN AND OTHERS.
[MuKHERJEA, VIVIAN BosE, GttuLAM Ht\SAN
·and VENK~TARAMA AYYAR JJ.]
Suits Valuation Act (Vll of 1887), s, 11-Appeal under-valued
and presented to a Court of inferior jurisdiction-Whether a decree
passed by it on the merits is a nullity-Whether mere
change of
form or error in a decision on the merits, prejudice tuithin the meaning of section 11 of the Suits Valuation Act-Whether a party who
invokes a jurisdiction of a Court can complain of prejudice on the
ground of over-valuation or under-valuation.
The policy underlying section ll of the Suits
Valuation Act,
as also of sections 21 and 99 of the Code of Civil Procedure, is that
when a case has been tried by a Court on the merits and judgment
rendered, it sh01,1ld not be liable to be reversed purely on technical
grounds, unless a failure of Justice has resulted. The policy of the
Legislature has been
to treat
objections as to jurisdiction, both
territorial and pecuniary, as technical
and not open to
consideration by an appellate Court, unless there has been prejudice on the
merits.
Mere change of form is not prejudice within
the
meaning of
section 11 of the Suits Valuation Act ; nor a mere error in the
decision on the merits of the case.
It must be one directly attributable to over-valuation or under-valuation.
Whether there has been prejudice or not is a matter to he
determined on the facts of each case. The jurisdiction under se<:-
tion 11 is an equitable one to be exercised, ·when there has
been
an erroneous assumption of jurisdiction by a Subordinate Court as
a result of over-valuation or under-valuation and
a
consequential
failure of justice. It is
neither possible, nor desirable to define
tiUCh jurisdiction closely or confine it within stated bounds,
1954
Manila[ Mohanlai
Shah arid Others
v.
Sardar Sayed
Ahmed Sajed
Mahmadand
·Another.
1954
April 14.