PANDURANG DHONI CHOUGULE versus MARUTI HARI JADHAV

Citation: [1966] 1 S.C.R. 102 · Decided: 26-04-1965 · Supreme Court of India · Bench: P.B. GAJENDRAGADKAR · Disposal: Case Allowed

Cited by 4 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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{is-
diction 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' pre-
decessors 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 con-
tinued 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' con-
tention 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 com-
posite decree and on the respondents' failure to pay the decretal amount 
within the time specified, their right to redeem the mortgage \Vas extin-
guiShed 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 redemp-
tion 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 pro-
vision 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 rela-
tion to the jurisdiction of the Court. Like other matters which a

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