MOHD. YUNUS versus MOHD. MUSTAQIM & ORS .

Citation: [1984] 1 S.C.R. 211 · Decided: 04-10-1983 · Supreme Court of India · Bench: A.P. SEN · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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/ 
211 
MOHD. YUNUS 
v. 
MOHD. MUSTAQIM & ORS . 
. ' 
October 4, .1983 
[A. P. SEN AND E. S. VENKATARAMIAH, JJ.J 
Constitution of India 1950 : Petition under O.XXl r.92 dismissed-Ptti• 
tiontr, if could file a petition under Art. 227 of the Con~titution. 
Code of Civil Procedure: Petition under O.XXI, r.92 dismissed-Appeal 
not preferred-If could move High Court under Article 227. 
On the failure of the judgment-debtor to satisfy the decree passed against 
him the property in dispute was sold in execution of the decree. The surety 
made an application' under Section 151 Code. of Civil Procedure, without 
mentioning. the order under which the application was mad-e. The Subordinate 
Judge treated the application as one under order XXI, r.89. The surety in that 
application prayed for t·ime to deposit the amount but failed to make the 
deposit. J.n the meantime, he died. 
A total strapger to his estate purporting 
to be his grand-nephew made an application for substitution claiming that he 
was the surety•s successor-in-interest and that before his, death _the 'surety had 
executed a will in his favour. On the same day the decree-holder made an 
- application stating·that the surety had made payment 6f the decretal amount 
before the sale was held and prayed that full satisfaction of the decree be 
recorded. 
The respondent who was the auction-purcha'ser, contested, the 
. genuineness of the will and stated that the alleg~d adjustment could not in any 
event affect his right or title to the property in dispute as auction-purchaser. 
The-subordinate Judge refused substitution of the petitioner. Some time later. 
the petitioner moved another application under se~tion 151 of the Code of. 
Civil Procedure, for setting aside the sale on the ground of material irregularity 
in conducting the sale but that application was rejecte~ by the Subordinate 
Judge. 
A 
B 
D 
' 
The petitioner thereupon moved· the High Court_ under Art. 227 of the 
G 
Constitution contending that fraud was perpetrated ·by the decree-holder in 
bringing the property hi dispute to sale although' there was fun satisfaction of 
· the decree by the surety before his death. The High Court declined to interfere 
with the impugned orders of the Subordin_ate Judge on various grounds. 
On the question whether it was proper fo.r the petitiQ\ler tQ h~ve ~ove4 
'petition under Art. 227 of the C:onstit~~~C?l:l:~ 
· 
Dismissing the ~C?ti~~?~~ 
A. 
B 
c 
D 
F 
G 
H 
212 
SUPREME COURT REPORTS 
i1984j 1 s.C.R. 
HELD : The petition under Art. 227 was wholly misconceived. The 
supervisory jurisdiction conferred on the High Courts under Art. 227 of the 
Constitution is 1imited "to seeing thiii an inferior· Court or Tribunal functions 
within the limits of its authority", and not to correct an arror apparent oD the 
face of the record, much less an error of laW. In the instant case, there was no 
error of t8.w. or error apparent on the face of record. From an ·order under 
-0.XXI, r.92. an appeal lay to the District Judge. That apart the petitioner's 
application iaised a question re_lating_ to execution which fell within the purview 
of section 47 Code of Civil Procedure which prior to February 1, 1977 was 
appealable because then a decision under section 47 was deemed to be a decree 
under section 2(2) of the Code. There'fore, the Petitioner had the remedy of 
appeal to the District Judge: Even if no ·appeal lay against the impugned 
orders of the Subordinate Judge, the petitioner had the remedy of filini;t a 
revision bc_fore the High Court under section 115 of -the Code. Upon any view 
of the matter the High Court under Art. 227 of the Constitution had no juris-
. diction to interfere with the impugned orders passed by the Subordinate Judge. 
A mere wrong decision Without anything more JS ·not ehough to atitact the 
jurisdiction of the High Collrt under Articte· 227. 
.:. 
[215 E; 216 B-C; 215 F-H; 216 A] 
. . 
C1v,(L APPELLATE JURISDICTION: Special Leave Petition No. 9148 
of 1980. 
· 
From the Judgment and Order dated the -3rd September, . 1980 
of the High Court of Delhi in C,M. (N). No: 49 of 1974 •. 
Prithvi Raj and Chaman Lal Itorora for the Petitioner. 
l.p. Garg and K.B. Rohtagi for the Respondents. 
/ 
The Judgment of the Court was delivered. by . 
SEN, J : This special leave petition directed against the judgment 
and order of the Delhi High Court dated September 3, 1980 must 
fail as the decision of the High Court on merits ·is unassailable. But 

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