MANINDRA LAND AND BUILDING versus BHUTNATH BANERJEE AND OTHERS

Citation: [1964] 3 S.C.R. 495 · Decided: 02-05-1963 · Supreme Court of India · Bench: K. SUBBA RAO · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

• 
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

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